IN THE CASE OF: BOARD DATE: 27 April 2017 DOCKET NUMBER: AR20150017885 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: 27 April 2017 DOCKET NUMBER: AR20150017885 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: 27 April 2017 DOCKET NUMBER: AR20150017885 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, daughter and next of kin of a discharged veteran, requests an upgrade of her father's discharge. She also requests a personal appearance, if warranted. 2. The applicant states: * the veteran was married against the bride's family's approval and the father of the bride manipulated the veteran's date of entry into the Army * the veteran was informed that the bride's father was filing for annulment of the marriage and she was pregnant * the veteran was young; he left basic training and hitch-hiked home to save his marriage * the veteran voluntarily returned to his post to take responsibility for his own actions * the veteran was confined and the Army discharged him for misconduct * the veteran has never seen the child from this marriage * the veteran has Alzheimer's disease and it is in its late stage * the veteran's current discharge disqualifies him from remaining in a veteran center 3. The applicant provides: * power of attorney * mother's death certificate * WD AGO Form 53-56 (Enlisted Record and Report of Separation – Discharge from the Army of the United States) * discharge certificate * medical statements * Congressional correspondence 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 veteran'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 veteran'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. The veteran's WD AGO Form 53-56 shows he was inducted into the Army of the United States on 8 October 1945. At the time of his separation, the veteran was in basic combat training at Company M, 10th Battalion, Aberdeen Proving Grounds, MD. 4. The veteran's WD Form 372A (Final Payment Worksheet) shows he was absent without leave (AWOL) from 1 January to 24 January 1946, from 30 January to 6 February 1946, and from 5 August to 30 October 1946. 5. His WD AGO Form 372A also reveals the veteran was convicted: * on 12 March 1946, by special court-martial, and Orders Number 84 show he was sentenced to forfeiture of $14.00 pay per month for 6 months * on 26 November 1946, by special court-martial, and Orders Number 691 show he was sentenced to forfeiture of $32.00 pay per month for 6 months 6. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his WD AGO Form 53-56 shows he was discharged on 23 January 1947 under the provisions of Army Regulation (AR) 615-368 (Enlisted Men – Discharge – Unfitness (Undesirable Habits or Traits of Character)). This form also shows: * the veteran completed 1 year, 3 months, and 16 days of active service * 339 days of lost time under the Articles of War * he held the rank of private 7. The applicant provides her mother's death certificate as well as medical documents showing the veteran has dementia and is unable to make medical or financial decisions. His daughter, the applicant is his designated personal representative. REFERENCE: 1. AR 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness. This regulation provided for the discharge of individuals who had demonstrated their unfitness by giving evidence of habits and traits of character manifested by misconduct. Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct. An undesirable discharge was normally considered appropriate. 2. AR 615-368 also stated that a board of officers would recommend that the individual either be discharged because of unfitness or unsuitability, or retained in the service. The regulation stated that discharge, if recommended, would be for unfitness, except that discharge because of unsuitability (under AR 615-369 (Enlisted Personnel – Discharge – Inaptitude or Unsuitability)) without referral to another board might be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warranted. As examples, such circumstances would apply where the cause of unfitness had been minor relative to the length of efficient service or where there had been a definite effort at self-control or where an individual had distinguished himself by an act of heroism during his current period of service which in itself reflected great credit on the individual and the military service. 3. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. 4. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The complete facts and circumstances surrounding the veteran's discharge are not available for review with this case. However, the veteran's WD AGO Form 53-56 shows he was discharged on 23 January 1947 under the provisions of AR 615-368 with an undesirable discharge. This form also shows he had 339 days of lost time. 3. In the absence of evidence to the contrary, it appears the veteran had a history of misconduct (repeated unauthorized absences) that led his chain of command to recommend his separation. It is presumed that his administrative separation was accomplished in compliance with applicable regulations at the time with no procedural errors which would tend to jeopardize his rights. It is also presumed that the separation authority appropriately directed issuance of an undesirable discharge based on his overall record during the period under review. 4. Based on his available record, particularly his two courts-martial convictions and extensive history of AWOL, his service appears not to have met the standards of acceptable conduct and performance of duty for Army personnel. The board does not upgrade discharges solely to allow a veteran benefits. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017885 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017885 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2