IN THE CASE OF:	  

		BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20150002301 


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 under honorable conditions discharge (general) to an honorable discharge.

2.  The applicant states:

	a.  he served as the company clerk in Korea.

	b.  his first sergeant (1SG) arrived a few months before he returned to the United States of America U.S.A., was gay, and constantly approached him and offered him a stripe on his patch for various considerations.

	c.  during his separation he was given a DD Form 217A (Armed Forces of the U.S. Report of Transfer or Discharge) and DD Form 214 (Certificate of Service, Armed Forces of the U.S.).

	d.  one form stated that he served honorably and he had no reason to  question it.

	e.  his 1SG was only there for a short time and tried to court-martial him under Article 13 (sic Article 15) which was dropped after a meeting with the company commander.

	f.  during his service in Korea, he passed an Inspector General's inspection with high marks for the orderly room and motor pool.

	f.  he was a squad leader during his 16 weeks of training.

	g.  he enjoyed his relations with his peers and officers. 

3.  The applicant provides a DD Form 214.

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

3.  The applicant submitted a DD Form 214 which shows he was inducted into the Army of the U.S (AUS) on 19 July 1956, which shows he enlisted in the Regular Army on 26 January 1956 and served until he was discharged under honorable conditions on 1 May 1958.  This DD Form 214 also shows that he was issued a DD Form 217A certificate.

4.  He submitted a DD Form 217A which shows he served honorably on active duty in the AUS.

5.  Army Regulation 635-200 (Personnel Separations - 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  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.

6.  Special Regulation 615-360-1 (Enlisted Personnel, Separation of Enlisted Personnel), in effect at the time, provided that the purpose of a separation certificate was to provide the individual with documentary evidence of military service and to furnish a vital record for interested government agencies which assist the individual in obtaining the rights and benefits which may accrue to him as the result of such service.  A DD Form 217A was authorized for enlisted personnel who were separated with an honorable or general, under honorable conditions release form active military service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged under honorable conditions (general).  His DD Form 217A shows he served honorably.

2.  By the applicant's own admission, his 1SG tried to court-martial him under Article 15, but the company commander dropped it.  Therefore, it is presumed that he received a lessor form of punishment for an unstated offense and is not entitled to have his DD Form 214 corrected to show he received an honorable discharge.

3.  There is no evidence which indicates the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence that all requirements of law and regulations were not met, or the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

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)                                         AR20150002301





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ABCMR Record of Proceedings (cont)                                         AR20150002301



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