IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20150010185 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 IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20150010185 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. IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20150010185 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 upgrade of his bad conduct discharge to general under honorable conditions. 2. The applicant states: * he desires a change in his discharge to general under honorable conditions to allow him to receive his benefits * he requests to receive all benefits to which a veteran of the Korean war is entitled * because of his age, health, and having no living relatives, he will not be able to furnish much proof of his claim * he exists from the little social security benefits he receives monthly, amounting to $775.10, which barely covers his monthly expenses and would not suffice to cover upcoming medical costs * he enlisted in 1952 and was assigned to Fort Meade, MD, and Fort Belvoir, VA, for training * in 1953 he underwent military police training in Seattle, WA, while awaiting shipment to Chuncheon, South Korea * he arrived in Korea before the cease fire was declared and served there under the 24th Engineer Construction Battalion for 16 to 18 months where the battalion was responsible for the construction of all roads leading in and out of Korea at the time * in 1955 he returned stateside to duty with the 4th Armored Division at Fort Hood, TX * upon his arrival there, he requested emergency leave due to the death of a family member * his leave request was denied, so he was absent without leave (AWOL), breaking two direct orders to return to the company * subsequent to his period of AWOL, he was tried by court-martial, sentenced to serve 11 months of confinement at Fort Crowder, MO, and received a bad conduct discharge in 1956 * at the time of his trial he did not have a lawyer * he served in and survived the Korean War and should be eligible to receive all benefits afforded to such veterans by virtue of this service * in effect, as a tax-paying citizen, he should not be made to suffer for the fire at the National Personnel Records Center (NPRC), St. Louis, MO, which destroyed all military records 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * self-authored statement 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 for review. The Army Review Boards Agency requested the applicant's military records from the NPRC, but the request was returned without success as there are no available records pertaining to the applicant at the NPRC. On 12 July 1973, a disastrous fire at the NPRC destroyed approximately 16-18 million Official Military Personnel Files. The fire affected the records of Army personnel discharged between 1 November 1912 and 1 January 1960. 3. His DD Form 214 shows he enlisted in the Regular Army on 24 November 1952. 4. He claims he requested emergency leave in 1955 due to the death of a family member, but his request was denied, thus he absented himself without leave. He admits to being tried by court-martial for charges related to being AWOL, of which he was found guilty. He claims he was sentenced to 11 months of confinement at Fort Crowder, MO, and given a bad conduct discharge. Records of his court-martial proceedings are not available for review. 5. His DD Form 214 shows he was given a bad conduct discharge on 12 November 1956 per the authority of Army Regulation 635-204 (Personnel Separations – Dishonorable and Bad Conduct Discharge) and Headquarters, 4th Armored Division, General Court Martial Order 10, dated 21 January 1956. He had 28 days of lost time and an additional 354 days of lost time subsequent to his normal expiration term of service. He completed 2 years, 11 months, and 3 days of net service. His service was characterized as under other than honorable conditions. REFERENCES: 1. Title 10, U.S. Code, section 1552, provides that with respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 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. c. Paragraph 3-11 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review is required to be completed and the affirmed sentence ordered duly executed. 3. Army Regulation 635-204, in effect at the time, prescribed policies and procedures pertaining to dishonorable and bad conduct discharges. Paragraph 1b stated an enlisted person would be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge. 4. 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 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: 1. The applicant's request for an upgrade of his discharge under other than honorable conditions to general under honorable conditions was carefully considered. 2. The applicant's military records are not available for review. It is incumbent upon the applicant to provide a compelling argument supported by corroborating documentation to show his records are in need of correction based on an injustice or inequity. In the absence of such evidence, administrative regularity is presumed with regard to his court-martial and subsequent discharge. 3. He admits to being sentenced to 11 months of confinement and a bad conduct discharge by a court-martial secondary to charges of AWOL. His DD Form 214 reflects 382 days of lost time, a bad conduct discharge resulting from a general court-martial, and a character of service as under other than honorable conditions. The quality of his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. 4. Although he claims to have had no legal representation at his court-martial proceedings, there is no indication his discharge was not accomplished in compliance with applicable regulations without procedural errors which would have jeopardized his rights. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 5. The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits. Each case is individually considered based on the evidence of record and the evidence presented. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010185 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010185 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2