IN THE CASE OF:	  

		BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140012213 


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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states:

   a.  he received a dishonorable discharge because he falsified his age during his enlistment process;
   
   b.  while he cannot undo his wrong, he successfully completed ground and jump training, received his certificate, and requests consideration be given to upgrade his UD to an HD; and
   
   c.  as it relates to his discharge under the provisions of Army Regulation 635-206, he was only 16 years of age at the time and as a juvenile, he could not have been convicted by a civilian court.

3.  The applicant provides:

* Self-Authored Statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Airborne Certificate
* Letter of Accomplishment


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 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 that the applicant's records were lost or destroyed in that fire.  This applicant's DD Form 214 is the primary document used in this case.

3.  The applicant's DD Form 214 shows:

   a.  he enlisted in the Regular Army on 23 August 1955 and was trained in and awarded military occupational specialty 111.07 (Light Weapons Infantryman);
   
   b.  he served until he discharged under the provisions of Section I, Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, Absent Without Leave, Desertion)) on 13 July 1956;
   
   c.  he completed 5 months and 18 days of creditable active duty service and accrued 143 days time lost;
   
   d.  his characterization of service was classified as under other than honorable conditions; and
   
   e.  his date of birth was entered as 19 November 1937, making him 17 years and 9 months of age at time of entry and almost 18 1/2 years of age at time of discharge.

4.  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.
5.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  An undesirable discharge was normally considered appropriate.
   
6.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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 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 contends that his UD should be upgraded to an HD.  There is insufficient evidence to support this claim.

2.  The available evidence is void of the specific facts and circumstances surrounding the applicant’s discharge processing.  However, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s discharge.  This document carries with it a presumption of government regularity in the discharge process.  Therefore, absent evidence to the contrary, it is concluded his separation processing was accomplished in accordance with the applicable regulation; and that requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant has not provided any documentary evidence showing that he was under the legal age to enlist with parental consent.  There is no available evidence showing that he falsified his date of birth.

4.  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)                                         AR20140012213





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ABCMR Record of Proceedings (cont)                                         AR20140012213



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