BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150006024 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, in effect, an upgrade of his undesirable discharge. 2. The applicant makes no statement. 3. The applicant provides: * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) * marriage license * patient discharge summary 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 complete 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 remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case. 3. He enlisted in the Regular Army on 18 June 1954 for a period of 3 years. 4. His records are void of the specific facts and circumstances surrounding his discharge action. However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions for unfitness on 8 January 1957 under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) and assigned separation program number 382 (Demonstrates Behavior, Participates in Activities or Associations Which Show Unreliability). He completed 2 years, 4 months, and 4 days of total active service with 77 days of lost time. 5. His records contain an administrative decision from the VA, dated 2 April 1973, which states: * the applicant entered active duty on 18 June 1954 * he received a discharge under other than honorable conditions on 8 June 1957 * records show he received nonjudicial punishment and was convicted by a court-martial * it was shown he manifested traits of willful and persistent misconduct over a period of many months * his service from 18 June 1954 to 8 June 1957 was considered dishonorable 6. The applicant provided a patient discharge summary, dated 12 August 2013, showing he was diagnosed with: * primary degenerative dementia of the Alzheimer type, senile onset * severe major depression with psychotic features, mood-incongruent 7. He also provided a VA Form 21-4138 executed by his wife on 26 January 2015 who attests: * she has to take care of the applicant due to his health condition and memory loss * she has applied for aid to help her with the finances for his medications * he is unable to do things for himself * he suffers from Alzheimer's 8. There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 9. Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel having undesirable habits and traits of character. When separation for unfitness was warranted, an undesirable discharge was normally issued. a. A recommendation for discharge because of undesirability would be made in the case of an enlisted person who: (1) gave evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct; (2) possessed unclean habits, including repeated venereal infections; (3) repeatedly committed petty offenses not warranting trial by court-martial; (4) was a habitual shirker; (5) was recommended for discharge by a disposition or other board of medical officers because he possessed a psychopathic (anti-social) personality disorder or defect, or was classified as having "no disease" by the board, and his record of service revealed frequent disciplinary actions because of infractions of regulations and commission of offenses, or it was clearly evident his complaints were unfounded and were made with the intent of avoiding service.; and/or (6) demonstrated behavior, participated in activities or associations which tended to show he was not reliable or trustworthy. b. Action to separate an individual would be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. 10. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel from active duty. a. 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. 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 AND CONCLUSIONS: 1. In the absence of evidence to the contrary, it must be presumed that his separation processing was administratively correct and in conformance with applicable regulations. Without the discharge packet to consider, it is presumed the authority and reason for his separation was commensurate with his overall record of service. 2. In view of the foregoing evidence, there is an insufficient basis for granting the applicant's 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 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) AR20150006024 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006024 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1