IN THE CASE OF: BOARD DATE: 10 December 2009 DOCKET NUMBER: AR20090011066 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 that his undesirable be upgraded to a general under honorable conditions discharge. 2. The applicant states he had honorable service from September 1948 to March 1950 and he reenlisted in April 1950. a. He states that prior to going to Korea, his wife became pregnant with another man's child. He also states he had already adopted her two previous children and he adopted her third child after the baby was born. He adds that as a result, Social Services wanted him to pay the doctor and hospital bills associated with the baby's birth. b. He states that while he was in Korea, he and his wife divorced. He adds that he was young at the time, his personal life fell apart, and he turned to alcohol. He also states that his time in prison is what led to his discharge. c. He states that he realized he was an alcoholic in 1978 and has been alcohol-free ever since. He adds it has been more than 30 years since then, he has changed his behavior, and he has been of good personal character. He also states that he regrets the mistakes he made while in the military, his discharge has been a burden to carry throughout his life, and he requests upgrade of the character of service of his discharge. 3. The applicant provides a self-authored letter to his Congressman, dated 10 September 2008; a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 10 September 2008; two DD Forms 214 (Report of Separation from the Armed Forces of the United States); National Archives (NA) Form 13038 (Certification of Military Service), issued 23 July 2008; a DD Form 553 (Absentee Wanted by the Armed Forces), dated 12 April 1955; and nine personal reference letters. 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 service 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, the applicant provides sufficient documents to constitute a reconstructed record for the Board to conduct a fair and impartial review of this case. 3. The following documents show: a. The DD Form 214 and NA Form 13038 show the applicant enlisted and entered active duty in the Regular Army (RA) on 28 September 1948. At the time of his enlistment, the applicant was 18 years of age. Upon completion of training he was awarded military occupational specialty 0062 (Cook Apprentice). The applicant was honorably discharged on 3 March 1950 in the rank of private first class. At the time he had completed 1 year, 6 months, and 6 days of net active service. These documents show that the applicant reenlisted on 4 April 1950. b. A DD Form 553 shows the applicant departed Fort Leonard Wood, Missouri, on 12 March 1955, and was reported absent without leave (AWOL) effective 0100 hours, 12 March 1955. c. A DD Form 214 shows the applicant reenlisted in the RA for a period of 6 years and entered active duty on 4 April 1950. This document also shows his most significant assignment was with Company M, 223rd Infantry Regiment, and that he served in the Republic of Korea. The applicant was awarded the National Defense Service Medal, United Nations Service Medal, Korean Service Medal, and Republic of Korea Presidential Unit Citation. The applicant was discharged on 11 February 1956 under the provisions of Army Regulation 635-206 (Conviction by Civil Court), section IV, with a separation program number 73 (Civil Conviction) and a character of separation of undesirable. At the time he had completed 3 years, 8 months, and 21 days of net active service for pay purposes this period; 1 year, 6 months, and 6 days of other service; and 1 year, 3 months, and 28 days of foreign service. This document further shows that the applicant had 777 days of time lost. d. Nine personal reference letters written by his sister, five other relatives, a co-worker, and two personal acquaintances. All of these individuals attest to the applicant's good character and citizenship over the past 30 years, his honesty and integrity, and his reliability as an employee. These individuals also offer their support for upgrade of the applicant's discharge. 4. There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 5. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct, which included conviction by civil court. This regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities or action was taken against them which was tantamount to a finding of guilty for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year. An undesirable discharge was normally considered appropriate. 6. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-7b, provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his undesirable discharge should be upgraded because he had prior honorable service from September 1948 to March 1950, he was young when his personal life fell apart, and he has been alcohol-free and a model citizen for the past 30 years. 2. The applicant's contention that he was young is not sufficiently mitigating to warrant relief. Records show the applicant completed training when he was 18 years of age, was subsequently credited with a period of honorable active duty service, and that he was 24 years of age at the time he departed AWOL. There is no evidence that indicates the applicant was any less mature or any less capable of handling life's personal challenges than other Soldiers of the same age who successfully completed military service. 3. There is a presumption of administrative regularity in the conduct of governmental affairs. This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption. Thus, in the absence of evidence to the contrary, the presumption is that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process. 4. The applicant's post-service conduct, personal commitment to family, and service to the community since his discharge were also carefully considered. The applicant's good post-service conduct, acknowledgement in 1978 that he was an alcoholic, and number of years he has been alcohol-free since then are noteworthy, but are not so meritorious as to warrant an upgrade of his discharge. 5. 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. Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request. 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) AR20090011066 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090011066 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1