BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130018813 


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 upgrade of his undesirable discharge to honorable.

2.  The applicant states he had been on extended duty for more than 24 hours.  He asked to be relieved of duty and argued with the lieutenant.  The lieutenant commented that he would fix him.  The applicant further contends he is applying for home health care through the Department of Veterans Affairs (VA) due to his dementia and memory loss.

3.  The applicant provides copies of:

* A letter of support from his daughter, dated 10 October 2013
* A DD Form 214 (Report of Separation from the Armed Forces of the United States), for the period ending 27 June 1953
* A VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance), dated 8 August 2013

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 applicant's military records are not available for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request.

3.  The applicant's DD Form 214 indicates he enlisted in the Regular Army on 
20 July 1950 and served as an infantryman in the Republic of Korea.  He was awarded the Combat Infantryman Badge, Korean Service Medal, and the Purple Heart for wounds he received to his left leg.

4.  The discharge packet is missing from his military record.  However, his 
DD Form 214 shows that he was administratively discharged on 27 June 1953, under the provisions of Army Regulation 615-638 (Enlisted Men - Discharge - Unfitness (Undesirable Habits and Traits of Character)).  His service was characterized as undesirable.  He completed 2 years, 11 months, and 8 days of creditable active duty service.

5.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

6.  The letter of support from the applicant's daughter states the only thing she can relay from her father is that he was on duty for over 24 hours and needed to be relieved due to fatigue and got into an argument with the lieutenant.  A comment was made from the lieutenant to another gentleman, "We will fix him so he will not get anything from us."  The daughter continues by saying her father is a very honorable man and would do anything for anyone.  He worked at the same company for 30 years while also running his own business.  He did not talk about being in the Korean War until about 15 years ago because it was so painful.  He did come home wounded and had earned the Purple Heart.  He still has shrapnel in his body that is working its way out of his left leg.  He has a great respect for his country and has grandchildren who have served our country, to include her son.

7.  Army Regulation 615-368, then in effect, set forth the basic authority for the separation of enlisted personnel for unfitness.  It stated that Soldiers could be separated for unfitness for habits or traits of character manifested by antisocial or amoral trend, chronic alcoholism, drug addiction, misconduct, unclean habits, including repeated venereal infections, repeated commission of petty offenses not warranting trial by court-martial, habitual shirking, or a recommendation by medical authorities indicating that the member possessed an antisocial personality.  An undesirable discharge was normally considered appropriate.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides that the Board 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.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests upgrade of his undesirable discharge because he has dementia and memory loss and is in need of VA medical benefits and regular aid and attendance.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The available records do not contain any evidence of the misconduct that led to the applicant's discharge.  However, the applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge was unjust.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

5.  In view of the foregoing there is no basis for granting the applicant's 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)                                         AR20130018813





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ABCMR Record of Proceedings (cont)                                         AR20130018813



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