RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            FEBRUARY 10, 2004
	DOCKET NUMBER:   AR2003090090

	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. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Linda M. Barker		Member	
	Mr. Richard T. Dunbar		Member	

	The applicant and counsel if any, did not appear before the Board.

	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 that his undesirable discharge be upgraded to honorable and that his permanent mailing address be changed to his current address.

2.  The applicant offers no argument or evidence to support his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 20 December 1955.  The application submitted in this case is dated 14 April 2003.  

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 limitation 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 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.

4.  The applicant was born on 8 October 1934 and enlisted in the Regular Army in Kansas City, Missouri, on 28 April 1953, for a period of 3 years.  It appears that he served 18 months in Korea and was assigned to Company C, 1092nd Combat Engineer Battalion.  

5.  Upon completion of his overseas service he was transferred to Fort Carson, Colorado, where he was assigned to Company C, 31st Engineer Battalion.  He was discharged under other than honorable conditions on 20 December 1955, under the provisions of Army Regulation 615-366, for misconduct, due to conviction by civil authorities.  He had served 2 years, 4 months and 14 days of total active service and had 100 days of lost time due to confinement by civil authorities.  His permanent mailing address was listed as the Kansas State Industrial Reformatory in Hutchison, Kansas.

6.  There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board within that board's 15-year statute of limitations.

7.  Army Regulation 615-366, in effect at the time, provided for the administrative discharge of personnel for misconduct, who were convicted by civil authorities and who were in the custody of civil authorities.  It provided that an Undesirable Discharge Certificate would be issued.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant was administratively discharged in accordance with applicable laws and regulations in effect at the time, with no procedural errors that would jeopardize his rights.

2.  Accordingly, it appears that his discharge was properly characterized because the applicable regulation required such at the time.  It must also be presumed that his mailing address at the time his separation document (DD Form 214) was issued was correct.

3.  The applicant has offered no argument or evidence to support his request for an upgrade of his discharge or a change to his mailing address at the time of discharge and the available evidence is not sufficiently mitigating to warrant relief when considering the reason for his discharge. 

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.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 December 1955; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 19 December 1958.  However, the applicant did not 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

rtd_____  jns__   ___  lmb  _ ___  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 N. Slone___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090090	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040210	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	1955/12/20	
DISCHARGE AUTHORITY	AR615-366 . . . . .  	
DISCHARGE REASON	CIV CONV	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  144-6100	627/CONV CIV AUTH	
2.		
3.		
4.		
5.		
6.