RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 April 2008 DOCKET NUMBER: AR20080000747 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. Director Analyst The following members, a quorum, were present: Chairperson Member 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 that his general discharge under honorable conditions be upgraded to fully honorable. 2. The applicant states that he was court-martialed, but the charges were dropped as he had not committed any crime. He was given a general discharge, dropped in rank, and discharged from the service. He was a good trooper. He spent 13 months in Korea during the war and was awarded his Combat Infantryman Badge. He feels that his characterization of discharge was given as a punitive punishment. He was never in trouble before his court-martial, nor has he been in any trouble after. He feels he was given a one-way ticket out of the Army since they could not prove he had committed a crime. Within one or two weeks after he was exonerated, he was discharged and dropped in rank. 3. The applicant provides no additional evidence. 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 applicant’s records were lost or destroyed in that fire. However, there were sufficient documents, primarily consisting of his DD Form 214 (Report of Separation from the Armed Forces of the United States) remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case. 3. The applicant’s DD Form 214 shows he enlisted in the Regular Army on 25 June 1951 for 3 years. Item 3 (Grade – Rate – Rank and Date of Appointment) of his DD Form 214 shows his rank as Private, E-2 with a date of appointment of 1 December 1953. 4. Item 38 of the applicant’s DD Form 214 shows he was retained in the service for 1 month and 5 days for the convenience of the Government. He was discharged with a general discharge under honorable conditions on 6 October 1954 upon the expiration of his term of service under the provisions of Army Regulation 615-360 after completing 3 years, 1 month, and 5 days of creditable active service with 69 days of lost time. 5. Army Regulation 615-360, dated 24 June 1953, provided the general provisions for the discharge of enlisted personnel at the time. It stated it was the policy of the Department of the Army to base evaluation of an individual’s service and character on his overall enlistment period rather than on any disqualifying entries in his service record during a particular portion of his current service. The effects of an honorable discharge and a general discharge were identical and entitled an individual so discharged to full rights and benefits. 6. Army Regulation 615-360 stated an honorable discharge certificate would be furnished when the individual met the following qualifications: (1) had character ratings of at least “very good”; (2) had efficiency ratings of at least “excellent”; (3) had not been convicted by a general court-martial; and (4) had not been convicted more than once by a special court-martial. Notwithstanding the foregoing criteria, when disqualifying entries in the individual’s service record during current service were outweighed by subsequent honest and faithful service over a greater period of time, an honorable discharge could be furnished. Individuals discharged under honorable conditions which did not qualify them for an honorable discharge would normally be furnished a general discharge. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contentions that he had never been in trouble earlier in his enlistment and that he was a good trooper have been considered. However, more than 50 years have passed since his discharge, his records (to include a record of his conduct and efficiency ratings) are no longer available, and his statements cannot be substantiated by any evidence of record. 2. It is noted that his DD Form 214 indicates his rank as Private, E-2, but the effective date of appointment was 1 December 1953, almost 10 months before his discharge. There is no evidence to show he was discharged because the Army “kicked” him out “since they could not prove that he had committed a crime.” His DD Form 214 shows he was discharged because his enlistment had expired. 3. In the absence of evidence to the contrary, it must be presumed that his characterization of service was based upon his overall record of service. There is insufficient evidence that would warrant upgrading his discharge to fully honorable. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __lds___ __dkh___ __eem___ 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. _ _lds____ CHAIRPERSON ABCMR Record of Proceedings (cont) AR20080000747 4 DEPARTMENT OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 1901 SOUTH BELL STREET 2ND FLOOR ARLINGTON, VA 22202-4508