ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:      2 May 2019

	DOCKET NUMBER:  AR20160018796


APPLICANT REQUESTS:  Upgrade of his under honorable conditions (general) discharge to honorable.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Report of Separation from the Armed Forces of the United States)
* Department of Veterans Affairs (VA) Rating Decision

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  This case is being considered based on the documents the applicant provided.  

3.  The applicant states he was denied insurance because his separation document does not show an honorable discharge.  

4.  The applicant’s DD Form 214 shows he:

* enlisted in the Regular Army (Artillery) for a period of 2 years and entered active duty on 23 August 1950
* served 1 year and 5 days of foreign service
* was awarded the Parachutist Badge, Korean Service Medal with two bronze service stars, and the United Nations Service Medal
* was released from active duty and transferred to the U.S. Army Reserve on 23 July 1953, under the authority of Special Regulation 615-363-5 (Enlisted Personnel-Release from Active Duty to Enlisted Reserve Corps and National Guard), to complete 8 years of service under the Universal Military Training and Service Act
* was releases from active duty in the rank of private first class
* completed 2 years, 3 months, and 2 days of active service
* was retained in service for 3 months and 2 days 
* received service a service characterization of “general”
* accrued 293 days lost under section 6a, appendix 2b, Manual for Courts-Martial, 1951

5.  The applicant provided a VA Rating Decision showing he was granted service-connected disability compensation for post-traumatic stress disorder (PTSD) (Korean conflict incurred).

6.  On 15 March 2019, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion.  The ARBA medical advisor states that a review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the character and/or reason for the discharge (1953) in this case.  Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health conditions for the offenses (presumably absent without leave and/or desertion and/or confinement), which led to his separation from the active duty service and transfer to the USAR.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

7.  Records indicate the applicant passed away on or about 2 February 2017.  A copy of the advisory opinion was sent to the applicant’s former address on 22 March 2019, there was no response from his next of kin.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the documentary evidence supported by the applicant and found within the military service record of the applicant, to include the medical advisory finding of no evidence of a medical disability or condition, the Board concluded there was insufficient evidence to justify a change in the characterization of service.  

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	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.

	 
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.



REFERENCES:
1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Special Regulation 615-363-5, in effect at the time, provided in paragraph 2a (1) - To be transferred to the Enlisted Reserve Corps for a period of 6 years. - Each person who enlisted for 1 year during the period between 24 June 1948 and 18 June 1951 inclusive, while 18 years of age, under section 4(g), Universal Military Training and Service Act as amended, upon completion of the term of such enlistment or earlier release under honorable conditions, provided he meets current qualifications for enlistment in the Enlisted Reserve Corps.

3.  The U.S. Manual for Courts-Martial, effective 31 May 1951, states in section 6a (Soldiers to Make Good Time Lost) that every Soldier who in an existing or subsequent enlistment deserts the service of the United States, or without proper authority absents himself from his organization, station, or duty for more than one day, or who is confined for more than one day under sentence, or while awaiting trial and disposition of his case, if the trial results in conviction, or through the intemperate use of drugs or alcoholic liquor, or through disease or injury the result of his own misconduct, renders himself unable for more than one day to perform duty, shall be liable to serve, after his return to a full-duty status, for such period as shall, with he time he may have served prior to such desertion, unauthorized absence, confinement, or inability to perform duty, amount to the full term of that part of his enlistment period which he is required to serve with his organization before being furloughed to the Army Reserve. 

4.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, states in paragraph 3-7a, 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. 

5.  On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to:  mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment.  Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences.  The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge.

6.  Army Regulation 15-185 (ABCMR) states in paragraph 2-2, the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Paragraph 2-9 states 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.



ABCMR Record of Proceedings (cont)	 AR20160018796


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