IN THE CASE OF:	  

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20150002760 


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, son of the deceased former service member (FSM), requests an upgrade of his father's other than honorable discharge to an honorable discharge.

2.  The applicant states:

	a.  The FSM was born in Massachusetts and when he was approximately 2 years old, he was taken to Portugal by his parents.

	b.  The FSM never had an education and he could not read or write.

	c.  When the FSM was approximately 20 years old, he came back to the United States to find work.

   d.  The FSM served in the National Guard from 2 November 1939 to 20 May 1940 and he received an honorable discharge.

	e.  He believes his father  was discriminated against because he was labeled as a foreigner and he could not read, write, or speak English.  He can only imagine how his father  was treated.

	f.  He wishes that he had access to the documentation that was used in the court-martial in July 1943 and on 9 November 1943 because it does not state what the FSM was charged with under Article 61.

	g.  He and his family had no idea that the FSM had an other than honorable discharge.

	h.  The paperwork obtain by the funeral home from the Department of Veterans Affairs (VA) stated that the FSM had an honorable discharge.

	I.  It was not until he attempted to bury his mother that he was made aware of the type of discharge the FSM received.

3.  The applicant provides:

* Self-Authored Letter, dated 14 December 2014
* VA Letter, dated 12 August 2014
* Website printout of The Articles of War, approved on 4 June 1920
* Certificate of Death, dated 6 August 2014
* VA Letter, dated 7 August 1995
* Abstract Record of Birth, dated 26 September 1979
* WD AGO Form 53-55 (Report of Separation), dated 23 June 1944
* Certification of Military Service, dated 18 October 1982
* Local Registrar's Certification of Death
* Certification of Birth

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 FSM's complete military records are not available 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.  This case is being considered based on the evidence provided by the applicant.

3.  The FSM was inducted into the Army on 8 December 1942.  He was awarded a laborer military occupational specialty.

4.  After completing 1 year, 6 months, and 16 days of active service, the FSM was discharged on 23 June 1944, under the provisions of Army Regulation 615-360, section VIII (blue).  His WD AGO Form 53 shows that the type of discharge he received was other than honorable and his character at separation was poor.

5.  The applicant provides a copy of the FSM's Certification of Military Service, which shows he had prior honorable service in the National Guard of the United States from 2 November 1939 to 20 May 1940.  He also provides a letter from the VA dated 7 August 1995, which erroneously states that the FSM's character of service was honorable.

6.  The applicant provides a letter from the VA dated 12 August 2014 notifying him that his application for burial of his mother was denied.  The VA cited the FSM's other than honorable discharge as the basis for the denial.  The VA stated that the following evidence of record was considered:

* Department of the Army, Enlisted Record
* Summary Court-Martial, dated 19 July 1943 for violation of the 61st Article of War
* Special Court-Martial, dated 9 November 1943 for violation of the 61st Article of War
* WD AGO Form 53
* VA Administrative Decision dated 11 August 2014, stating that a statutory bar to receipt of VA benefits exists for the discharge received on 23 June 1944.

7.  He provides a website printout addressing the Articles of War, which was approved on 4 June 1920.  This printout shows that Article 61 pertained to absences without leave (AWOL).

8.  Army Regulation 615-360 (Enlisted Men Discharge - Release from Active Duty), dated 25 May 1944, in effect at the time, provided the authority for separation under section VIII for inaptness or undesirable habits or traits of character.  When discharge is recommended and approved a "Blue" discharge (WD AGO Form 56) would be issued.

9.  The WD AGO Form 56 (Discharge from the Army of the United States (blue)), called the "Blue Discharge," was used between 1925 and 1947.  The "Blue" title came from the fact that it was printed on blue paper.  It was called simply "Discharge" as distinguished from the other discharges at that time, the Honorable Discharge and the Dishonorable Discharge.  The “Blue Discharge” was not characterized, in the current use of that term, in that it was not stated to be either honorable or dishonorable.  The "Blue Discharge" was issued to individuals whose service was not dishonorable but who were not entitled to a "testimonial of honest and faithful service" as indicated by an honorable discharge.  The "Blue Discharge" was given to enlisted members for a variety of reasons to include minority (under age), fraudulent enlistment or induction, inaptness, lack of adaptability for military service, habits or traits of character rendering retention in the service not desirable, civil confinement, and disability not in the line of duty.

10.  Army Regulation 345-470 (Military Records, Discharge Certificate), 10 May 1934, with changes 1-5, in effect at the time, stated that discharge certificates will show the reason for discharge.  It will also show his character as a Soldier and as a man in one of the following terms: Excellent, Very Good, Good, Fair, or Poor.  For the "Blue Discharge" the choice was limited to Fair or Poor.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  However, he has not shown error or injustice in the type of discharge that the FSM received.  The available evidence suggests that the FSM received a blue discharge because his service did not meet the criteria for an honorable discharge.  He received a special court-martial and a summary court-martial for violations of Article 61.  Based on that evidence, his service was not fully honorable and there is no basis for granting the applicant's requested relief.

3.  In the absence of evidence to the contrary, it must be presumed that what the Army did in the FSM's case was correct.

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)                                         AR20150002760





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ABCMR Record of Proceedings (cont)                                         AR20150002760



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