IN THE CASE OF:
BOARD DATE: 17 June 2008
DOCKET NUMBER: AR20080005554
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, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).
2. The applicant states, in effect, that it is his belief that a GD should upgrade to an HD after two years.
3. The applicant provides no additional documentary evidence 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 applicants 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 applicants 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 that he enlisted in the Regular Army and entered active duty on 29 June 1960, and he was trained in and awarded military occupational specialty 133.00 (Armor Intelligence Specialist). His record shows he was first promoted to private first class (PFC) on 28 December 1960, which was the highest rank he held while serving on active duty. He was reduced from that rank to private/E-1 (PV1) for cause on 1 May 1961. It further shows he was advanced back to PFC on 12 September 1962, was again reduced from that grade to private/E-2 (PV2), and advanced back to PFC on 17 December 1962, which is the rank he held on the date of his separation on 17 January 1963. It further shows he earned the Sharpshooter Marksmanship Qualification Badge with Rifle (M-1 & M-14) Bar, Expert Marksmanship Qualification Badge with Pistol Bar, and 2nd Class Gunner Badge with Machinegun Bar during his active duty tenure.
3. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. His disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 October 1962, for possessing an unauthorized pass; and his conviction by a summary court-martial (SCM) on
1 May 1961, for sleeping on guard duty.
4. On 17 January 1963, the applicant was released from active duty with a GD, in the rank of PFC, after completing 2 years, 11 months, and 19 days of active military service.
5. There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.
6. Paragraph 7 of Army Regulation 635-205, in effect at the time, provided for the separation of enlisted personnel who were returning from overseas with less than 3 months remaining before the expiration of terms of enlistments or periods for which ordered to active duty. The separation authority could issue either an HD or GD based on the member's overall record of service.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his GD should have been upgraded to an HD in two years was carefully considered. However, the Army has neither now, nor has it ever had a policy to automatically upgrade discharges based on the passage of time. An upgrade of a discharge may be granted by the ADRB or this Board if either board determines the discharge was improper or inequitable.
2. The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. In this case, the applicant's disciplinary history clearly diminished the overall quality of his service below that meriting a fully honorable discharge. As a result, it appears to support the GD issued by the separation authority at the time. Absent any evidence that his discharge was improper or inequitable, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
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) AR20080005554
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ABCMR Record of Proceedings (cont) AR20080005554
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