BOARD DATE: 8 December 2015 DOCKET NUMBER: AR20150005690 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, the son of a former service member (FSM), requests an upgrade of the FSM's general discharge to honorable. 2. The applicant states: * his father requested 2 days of leave, but was told by his supervisor a leave request was not required for time off * his father was charged with being absent without leave (AWOL); he was court-martialed and reduced in rank to recruit * after being discharged his father served honorably as a firefighter for 30 years and retired as a captain * his father was unjustly charged with being AWOL 2 days; he accepted the punishment during World War II (post-war occupation of Japan) * this unjust punishment resulted in his general discharge 3. The applicant provides: * Durable Power of Attorney * applicant's birth certificate * photocopy of a General Discharge Certificate and WD AGO Form 53-58 (Enlisted Record and Report of Separation - General Discharge) * DD 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, section 1552) * six letters of support * letters, dated 24 April 1975, 6 May 1975, 2 June 1975, 26 January 1977, and 5 March 2015 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 the FSM's records were lost or destroyed in that fire. The documents the applicant provides to include a copy of the FSM's WD AGO 53-58 is sufficient to address his request. 3. The FSM's WD AGO 53-58 shows he enlisted in the Regular Army on 21 August 1946. 4. He was issued a general discharge under honorable conditions on 11 August 1949. His WD AGO Form 53-58 shows he completed 2 years, 11 months, and 19 days of net active creditable service. a. No narrative reason is given for separation, but the authority is shown as Army Regulation 615-365 (Enlisted Men - Discharge Convenience of the Government), Department of the Army Circular 335/48, PETS (prior to expiration of term of service). b. He was awarded or authorized: * Army of Occupation Medal (Japan) * World War II Victory Medal c. Item 55 (Remarks) shows he had 2 days of lost time. 5. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 6. The applicant provides documents originally submitted by the FSM to the Board. a. A self-authored statement by the FSM, dated 24 April 1975, which accompanied his DD Form 149, essentially stated: * he received a general discharge from the Army on 11 August 1949 * he served in the Army from 21 August 1946 through 11 August 1949 * during his service he lost 2 days as a result of being AWOL * he spent most of his service overseas * since his discharge he has worked for General Motors, the Birmingham, MI Fire Department, and the Dearborn Heights, MI Fire Department * he attained the rank of sergeant * he is married and the father of two children * he believed his general discharge was unjust; he had already been punished by being demoted * he requested an upgrade of his discharge to honorable b. Letter from the Board stating, due to the absence of records, the FSM's request was returned to the National Personnel Records Center without action. c. Six letters of support which, in effect, show he displayed courage, excellent character, and he had no issues with law enforcement. Additionally, on 25 January 1971 he was chosen for the Firefighter of the Year Award and was cited for saving a baby during a house fire. 7. Army Regulation 615-365 sets forth the conditions under which enlisted Soldiers may be discharged for the convenience of the government. The reasons include being discharged to: * permit immediate reenlistment * permit enlisted personnel who, on or after 9 December 1947, extended their short-term enlistments (less than 3 years) to attend school under the Servicemen's Readjustment Act of 1944 (so-called GI Bill of Rights) * dispose of cases involving an individual's claim that, prior to induction, he was denied a procedural right as provided by the Selective Service Act of 1948 and was, thus, erroneously inducted 8. Army Regulation 615-360, in effect at the time, provided that an honorable discharge certificate would be furnished when the individual had character ratings of at least "very good," had efficiency ratings of at least "excellent," had not been convicted by a general court-martial, and had not been convicted more than once by a special court-martial. A general discharge was given to Soldiers who did not qualify for an honorable discharge. 9. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. On behalf of his father, an FSM, the applicant requests an upgrade of the FSM's general discharge. Apart from the WD AGO Form 53-58 which the applicant provides, the FSM's records are not available for review. 2. Army Regulation 15-185 places the burden on the applicant to provide evidence to support his request. Other than a presentation of the FSM's version of events and letters of support, no documentary evidence from the FSM's period of service has been provided in support of the requested relief. 3. In the absence of evidence to the contrary, the Board proceeds from a presumption that the discharge shown was correct and that no injustice occurred. Based on the foregoing, there is insufficient evidence to support granting the requested relief. 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) AR20150005690 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005690 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1