BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130016494 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his under honorable conditions (general) discharge be upgraded to an honorable discharge.

2.  The applicant states that a series of honorable discharges, commendation letters, and awards followed his 8 June 1951 discharge his service; therefore, his character of service should be determined to be honorable.

3.  The applicant provides a transcript from his enlisted record, separation documents, numerous awards, certificates of training, and honorable discharge certificates received subsequent to his undesirable discharge.  These documents are listed in an attachment provided with this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, the available record contains a partial Criminal Investigation Division (CID) Report, Subject: [applicant] , completed on 20 November 1951.  The investigation determined that the applicant smoked several cigarettes containing an opium derivative on the evening of 9 May 1951 and he purchased narcotic drugs from unidentified cab drivers in Japan.  The applicant was taken into custody on 10 May 1951.

3.  His DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he was discharged on 8 June 1951 under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character)) with an undesirable discharge in the pay grade of private (PVT/E-1).  This form also shows he had 18 days of lost time.

4.  The applicant applied to the Army Discharge Review Board (ADRB) and requested an upgrade of his discharge.  On 29 December 1951, the ADRB determined that after reviewing the facts connected with his discharge he was entitled to a discharge certificate under honorable conditions. 

5.  On 24 January 1952, he was issued a DD Form 215 (Correction to Report of Separation from the Armed Forces of the United States) which shows the following changes in:

* item 3 (Grade-Rate-and Date of Appointment) - "Private First Class 1 Nov 50"
* item 8 (Reason and Authority for Discharge) - "Section 301 Public Law 346 78th Congress approved 22 June 1944 and AR 615-365"

6.  He reenlisted in the Regular Army on 4 June 1952 and was honorably retired in the pay grade of sergeant first class (SFC/E-7) on 31 January 1970.

7.  The applicant provides numerous military achievements received subsequent to his initial discharge which include letters of appreciation/commendation, awards, a recommendation for promotion to master sergeant, training certificates, military course completions, and honorable discharge certificates.

8.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  That regulation provided for the discharge of individuals who had demonstrated their unfitness by giving evidence of undesirable habits of character manifested by misconduct.  At the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge.
9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), currently in effect, governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged under the provisions of Army Regulation 
615-368 for unfitness with an undesirable discharge on 8 June 1951.

2.  Subsequently, the ADRB reviewed his overall service and approved his request for an upgrade of his discharge.  The board directed that he be issued an under honorable conditions (general) discharge.  This decision does not imply that the separation authority made an incorrect decision, an administrative error, or failed to comply with applicable laws and regulations.  His service record was considered and addressed in the form of an upgrade in the characterization of his service to general.

3.  It is noted that he honorably completed an additional 18 years of military service but this does not negate his past misconduct which included 18 days of lost time and the use of illegal drugs.  Based on the available record, his characterization of service for the period in question does not meet the standard of acceptable conduct and performance to warrant an upgrade to an honorable discharge.

4.  Based on the foregoing, there is insufficient evidence or argument to justify granting the requested relief.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  __X______  ___X_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


      _______ _   X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20130016494





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ABCMR Record of Proceedings (cont)                                         AR20130016494



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