IN THE CASE OF:	  

		BOARD DATE:	  30 July 2015

		DOCKET NUMBER:  AR20140021021 


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 that his undesirable discharge be upgraded to a more favorable discharge.

2.  The applicant states that the characterization of his service does not fit with his overall service.  Additionally, since his discharge he served with distinction as a police officer for over 20 years and received multiple commendations and he desires to have his service characterization upgraded.  

3.  The applicant provides copies of two civilian commendation certificates.

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 FSM’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular Army on 14 December 1953 for a period of 2 years.  He completed his training as a field artillery crewman and remained on active duty through continuous reenlistments.

4.  The facts and circumstances surrounding his administrative discharge are not present in the available record.  However, his records do contain two special orders and a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

   a.  Special Orders 22 issued by the U.S. Army Artillery and Missile Center, Fort Sill, OK on 28 January 1959 stated the applicant would be discharged from military service not by reason of physical disability effective 30 January 1959.  It stated he would also be issued an Undesirable Discharge Certificate. 
   
   b.  Special Orders 32 issued by the U.S. Army Artillery and Missile Center, Fort Sill, OK on 9 February 1959 again directed the applicant’s discharge with an Undesirable Discharge Certificate and adjusted his date of discharge to 10 February 1959.

	c.  The applicant’s DD Form 214 shows he was reduced to the pay grade of E-1 on 19 November 1958 and he was discharged under other than honorable conditions (undesirable discharge) on 10 February 1959, under the provisions of Army Regulation 635-208 (Undesirable Habits and Traits of Character) for unfitness due to undesirable habits and traits of character (misconduct).  He had served 4 years, 10 months and 17 days of active service with 3 years, 5 months and 29 days of foreign service.  He had 99 days of lost time.  His awards were the National Defense Service Medal and Army Occupation Medal with Germany Clasp.

5.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

6.  In support of his application, the applicant provided two civilian certificates.  On 10 August 1971, the mayor of Oklahoma City approved a resolution recognizing the applicant, a policeman with the Warr Acres Police Department, for assisting another police officer who was attacked by two assailants without regard to his own personal safety.  On 17 May 1983, he received the Silver Star for bravery from the American Police Hall of Fame for his performance of duty that reflected his courage, dedication and initiative as a professional law enforcement officer.

7.  Army Regulation 635-208, in effect at the time, set forth the basic authority for separation of enlisted personnel having undesirable habits and traits of character.  When separation for unfitness was warranted, an undesirable discharge was normally issued.  Recommendation for discharge because of undesirability would be made in the case of an enlisted person who:

   a.  gave evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.

   b.  repeatedly committed petty offenses not warranting trial by court-martial.

   c.  was a habitual shirker.

   d.  was recommended for discharge by a disposition or other board of medical officers because he possessed a psychopathic (anti-social) personality disorder or defect, or was classified as having "no disease" by the board, and his record of service revealed frequent disciplinary actions because of infractions of regulations and commission of offenses, or it was clearly evident his complaints were unfounded and were made with the intent of avoiding service.

   e.  demonstrated behavior, participated in activities, or associations which tended to show that he was not reliable or trustworthy.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  

8.  Army Regulation 15-185 (ABCMR) 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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s supporting documents for civilian accomplishments as a policeman and his contention that the characterization of his service does not fit his overall service have been carefully considered and found to lack merit.  

4.  He had almost 5 years of service, was serving the rank of E-1 at the time of his separation, had 99 days of lost time, and no individual awards.  These facts serve to validate the characterization of under other than honorable conditions and issuance of an Undesirable Discharge Certificate.

5.  While the applicant is to be commended for his post-service accomplishments, without the facts and circumstances surrounding his discharge, they are not sufficiently mitigating to overcome the presumption that what the Army did at the time was appropriate.

6.  Accordingly, there is insufficient evidence to support granting his request to upgrade his discharge.

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)                                         AR20140021021





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140021021



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1