IN THE CASE OF: BOARD DATE: 27 April 2010 DOCKET NUMBER: AR20090015321 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 an upgrade of his undesirable discharge. 2. The applicant states he wants his discharge upgraded so that he may be eligible for medical and other benefits. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his application. 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 record shows he enlisted in the Regular Army on 8 October 1963. 3. On 28 October 1965 the applicant was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 28 April to 8 October 1965. His punishment was a forfeiture of pay, reduction in rank, and confinement. 4. The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review. However, the available evidence does include a properly-constituted DD Form 214 that provides the following information: * Reason and Authority: Army Regulation 600-200 (Personnel Separations) * Separation Program Number (SPN): 28B (frequent involvement of a discreditable nature with civil or military authorities) * Effective Date: 29 March 1966 * Days Lost: 533 days * Net Active Service: 11 months and 29 days * Type of Certificate Issued: DD Form 258A (Undesirable Discharge Certificate) 5. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. This regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate. 6. Army Regulation 635-200, 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. 7. Army Regulation 635-200, 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. 8. Army Regulation 635-5-1 (SPN), in effect at the time of the applicant's separation from active duty, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214. It identified the SPN of “28B” as the appropriate code to assign enlisted Soldiers discharged for frequent involvement of a discreditable nature with civil or military authorities. DISCUSSION AND CONCLUSIONS: 1. Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted DD Form 214 that identifies the authority, reason, and the characterization of his service. 2. This ABCMR operates under the standard of presumption of regularity in governmental affairs. This standard provides that in the absence of evidence to the contrary, it must be presumed that the actions taken by the military were proper. There was nothing presented by the applicant and there is nothing in the available records that overcomes this presumption. 3. Therefore, it is reasonable to believe the applicant was appropriately issued an undesirable discharge. 4. In view of the above, there is no basis for granting the applicant 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 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) AR20090015321 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1