RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         30 March 2006
      DOCKET NUMBER:  AR20050009968


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. Rowland C. Heflin             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge (UD)
be upgraded.

2.  The applicant states, in effect, that his ability to serve was impaired
by his age and immaturity.  He claims he was from a small town and away
from home for the first time.  He states that he still has nightmares from
the things he saw as a 17-year old.  He claims that he already served his
time in the stockade and was back serving with no problems when he was
called before a separation board and discharged.  He claims that he has
since been told it was a method of downsizing.  He claims he wants his
children and grandchildren to know he served in Korea and earned the Purple
Heart (PH).

3.  The applicant provides the following documents in support of his
application:  Spouse Statement; Separation Document (DD Form 214);
Installation Clearance Record; Settlements Division Letter, dated 20 August
1953; PH Orders; and Separation Orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 April 1953.  The application submitted in this case is
dated
23 June 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  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.  However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.  This case is being
considered using reconstructed records,
which primarily consist of the applicant's DD Form 214, the documents he
provided, and miscellaneous documents that remain on file in his National
Personnel Records Center (NPRC) file.

4.  The specific facts and circumstances surrounding the applicant’s active
duty discharge processing are not available for review.  The evidence does
include a properly constituted DD Form 214 that contains the authority and
reason for the applicant’s active duty discharge.  This document was
authenticated by the applicant with his signature in Item 48 (Signature of
Person Being Separated).

5.  The applicant's separation document shows that he enlisted in the
Regular Army and entered active duty on 22 July 1949, at the age of 17.  He
was awarded and served in military occupational specialty (MOS) 1745 (Truck
Driver).  It also shows that he served overseas for 10 months and 5 days,
and that he completed a total of 3 years, 6 months, and 24 days of
creditable active military service, and accrued 419 days of time lost due
to being absent without leave (AWOL) and in confinement.

6.  The applicant's DD Form 214 confirms he was separated with an UD, under
the provisions of Army Regulation 615-368, by reason of unfitness, on 8
April 1953.  Item 27 (Decorations, Medals, Badges, Commendations, Citations
and Campaign Ribbons Awarded or Authorized) is blank, and Item 29 (Wounds
Received as a Result of Action with Enemy Forces) contains the entry "NA".
The applicant authenticated this document with his signature in Item 48
(Signature of Person Being Separated).

7.  The applicant provides a copy of Osan Army Hospital General Orders
Number 398, dated 30 December 1950, which awarded him the PH for being
wounded/injured in action in Korea on 31 November 1950.

8.  A Medical Examiner's Report (WD AGO Form 544), dated 16 October 1951,
confirms the applicant was examined by a physician on that date, while he
was a prisoner at a United States Air Force confinement facility in Dayton,
Ohio.  This document contains remarks indicating the applicant received the
PH for a frostbite injury to his feet that he received in Korea.

9.  The applicant's spouse provides a supporting statement in which she
states, in effect, that it did not make sense for her husband to receive an
UD after he had completed his time in the stockade, and that even the
sergeant who gave the applicant the discharge indicated he should contest
it.  However, her husband, the applicant, had no idea how to do this, but
no one who received the PH deserves an UD.  She states they have been
married for 48 years and have four children, five grandchildren and 1 great
grandchild, who believe their "Poppy", the applicant, is the greatest.  She
claims that if her husband is denied a military funeral, it would be
devastating to their family, who are all so proud of the PH he received.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.

11.  Army Regulation 615-368, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An undesirable discharge was normally
considered appropriate for members separating under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his youth and immaturity impaired his
ability to serve, and the supporting evidence he provided were carefully
considered.  However, the evidence shows that although he was only 17 years
of age when he entered the Army, he successfully completed training, and
served overseas prior to committing the misconduct that led to his
discharge.  Further, the argument he presents to upgrade his discharge
includes his comment that after completing his confinement, he was
performing his duties and was a good Soldier when he was arbitrarily
discharged.  As a result, it does not appear that his youth and immaturity
significantly impaired his ability to perform his duties.

2.  The available evidence is void of a discharge packet containing the
specific facts and circumstances concerning the events that led to the
applicant’s discharge from active duty.  However, there is a properly
constituted DD Form 214 on file that was authenticated by the applicant
with his signature.  This document identifies the reason and
characterization of the discharge.  This document carries a presumption of
Government regularity in the discharge process.

3.  Lacking evidence to the contrary, it is presumed that all requirements
of law and regulation were met and the rights of the applicant were
protected throughout the separation process.  Further, the DD Form 214
clearly shows the applicant accrued 419 days of time lost.  As a result,
notwithstanding the PH he received, it appears the UD he received
accurately reflects his overall record of service.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  The evidence shows the applicant should have discovered the alleged
error or injustice now under consideration on 8 April 1953.  Thus, the time
for him to file a request for correction of any error or injustice expired
on 7 April 1956.  However, he failed to file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JTM     __CAK __  __RCH__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050009968                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/03/30                              |
|TYPE OF DISCHARGE       |UD)                                     |
|DATE OF DISCHARGE       |1953/04/08                              |
|DISCHARGE AUTHORITY     |AR 615-368                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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