IN THE CASE OF:	  

		BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140011923 


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, in effect, his undesirable discharge be upgraded to an honorable discharge.

2.  He states:

* the military told him this (discharge upgrade) could be done with a clean civilian record, which he has
* he was promoted to permanent corporal in Japan which reflects a very good record
* later, when he had duty elsewhere, the commander who was a captain told him:

* he did not like him nor did he want people like him in his command
* he could not reduce him, but the major could

* that was 60 years ago
* all of his records were destroyed in a fire and he cannot get them replaced

3.  He provides a:

	a.  DD Form 214 (Report of Separation from the Armed Forces of the United States); 

	b.  DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States);
	 c.  Department of Veterans Affairs (VA) Form 21-526EZ (Notice to Veteran/Service Member of Evidence Necessary to Substantiate a Claim for Veterans Disability Compensation and Related Compensation Benefits); 

	d.  VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability); and

	c.  VA Form 21-527EZ (Notice to Veteran/Service Member of Evidence Necessary to Substantiate a Claim for Veterans Non-Service Connected Benefits).

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 complete military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the ABCMR to conduct a fair and impartial review of this case.

3.  The available records show he reenlisted in the Regular Army (RA) on 
9 March 1950. 

4.  The specific facts and circumstances surrounding his discharge processing are not available for review.  However, the available evidence includes his 
DD Form 214, which shows he was discharged on 20 July 1954 under the provisions of Army Regulation 615-368 (Enlisted Men – Discharge – Undesirable Habits or Traits of Character).  He was furnished an Undesirable Discharge Certificate.  He was credited with completing 5 years, 8 months, and 16 days of total active service with 61 days listed as lost time.
5.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

6.  He submitted a:
	a.  DD Form 293, dated 14 April 2014, wherein he states that:

* since leaving the military he has completed several two-year degree programs and earned a bachelor's degree
* his civilian record is very clean
* the reason for his name change is that he is transgendered
* he will be 87 years old this year
* we have been informed of his right arm and shoulder
* he has a prosthesis in his right elbow
* he strongly feels the Army is responsible for the worsening of his right arm and elbow
* he has had spinal fusion that is not service-connected
* he cannot stand for more than 1 minute

	b.  VA Form 21-526EZ, which shows he applied to the VA for service-connected disability; 

	c.  VA Form 21-527EZ, which shows he applied to the VA for non service-connected disability; and

	d.  A VA Form 21-8940, which shows he applied to the VA For a pension. 

7.  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.

8.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), currently in effect, governs the policies and procedures 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 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.  Although the applicant's record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted
DD Form 214 that identifies the authority, reason, and the characterization of the applicant's service.

2.  His post-service conduct is commendable.  However, it has no bearing on his behavior during his active duty service.

3.  Further, the evidence of record shows he had 61 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.

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

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)                                         AR20140011923





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ABCMR Record of Proceedings (cont)                                         AR20140011923



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