BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20170011955 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20170011955 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20170011955 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 requests an upgrade of his undesirable discharge and correction of the date of birth shown on his WD AGO Form 53-59 (Enlisted Record and Report of Separation ? Undesirable Discharge). 2. The applicant states – * he was a paratrooper with the 11th Airborne * he put in his 2 years as it was at the time * he joined the Army; he wasn’t made to go in * he had an honorable discharge, not an undesirable discharge * his date of birth is * he was discharged on 25 May 1950 * he feels he is a forgotten Soldier who deserves to have his case reconsidered * the signature on his discharge form is not his 3. The applicant provides copies of his – * WD AGO Form 53-59 for the period 11 August 1948 to 25 May 1949 * National Archives (NA) Form 13038 (Certificate of Military Service) for the period 11 August 1948 to 25 May 1949, issued on 20 April 2017 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. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed the applicant's records were lost in that fire. There are no existing personnel records except for the WD AGO Form 53-59 and NA Form 13038 the applicant submitted with his application. 3. The WD AGO Form 53-59 shows the applicant enlisted in the regular Army on 11 August 1948 for 3 years and was discharged on 25 May 1949. His branch of service at the time of discharge was the Quartermaster Corps, and his military occupational specialty is shown as "Basic Soldier 521." The form shows his last unit of assignment was the 537th Quartermaster Laundry Company, Fort Benning, GA, and the highest grade he held was recruit. 4. Item 10 (Date of Birth) of the WD AGO Form 53-59 shows the entry . 5. Item 40 (Reason and Authority for Separation) of the WD AGO Form 53-59 shows he was given an undesirable discharge under the provisions of Army Regulation (AR) 615-366, Section I. Item 55 (Remarks) shows he had 86 days lost due to absence without leave (AWOL). 6. His NA Form 13038 shows the same service dates, grade, birthdate, and undesirable discharge as shown on the WD AGO Form 53-59. REFERENCES: 1. Army Regulation 615-366 (Enlisted Personnel, Discharge, Misconduct (Fraudulent Entry, AWOL, Desertion, Conviction by Civil Court)), dated 17 December 1948, authorized discharge of enlisted personnel for misconduct, which was classified in four sections: Section I – Fraudulent Entry into the Army; Section II – Physically Unfit Deserters and Absentee; Section III – Deserters from the Spanish American War, World War I, or peacetime deserters in whose cases the statute of limitation is applicable; and Section IV – Conviction by Civil Court. The character of discharge under all four sections was an undesirable discharge and the Soldier would be issued a WD AGO Form 53-59. This regulation also directed that Soldiers discharged under its authority would be reduced to the grade of recruit (Rct – analogous to Private E-1). 2. In accordance with Army Regulation 615-366, Section I, a Soldier may be separated for fraudulent entry into the Army if it is discovered that upon enlistment, the Soldier concealed: * foreign citizenship * conviction by a civil court with a sentence in excess of one year * conviction by a civil court with a sentence of one year or less * adjudged a youthful offender and conceals a juvenile record * desertion or absence without leave from prior service * prior service * dependents * other disqualifications including a physical defect which would have made the individual ineligible for enlistment or induction 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate b. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant requested upgrade of his discharge and stated: * he was a paratrooper with the 11th Airborne * he put in his 2 years as it was at the time * he joined the Army, he wasn’t made to go in * he had an honorable discharge; not an undesirable discharge * his date of birth is * he feels he is a forgotten Soldier who deserves to have his case reconsidered * the signature on his discharge form is not his 2. There are no documents in the available records that corroborate the applicant's statements regarding his service. 3. His WD AGO Form 53-59 shows he was discharged on 25 May 1949 under the provisions of Army Regulation 615-366, Section I, for fraudulent entry into the Army with an undesirable discharge. In the absence of evidence showing otherwise, it must be presumed that his WD AGO Form 53-59 accurately records the facts of his service and personal information (i.e., the date of birth) as they existed at the time of his discharge. 4. The applicant’s NA Form 13038 provides that same relevant information as the WD AGO Form 53-59. 5. It is noted that if the applicant’s date of birth is as he claims in his application, then he would have been only 17 years, 1 month, and 11 days old when he enlisted, almost a year younger than the required age of 18 years old for enlistment. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953