IN THE CASE OF:	  

		BOARD DATE:	    15 May 2012

		DOCKET NUMBER:  AR20110022040 


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 under other than honorable conditions discharge.

2.  The applicant states he was told by his company commander that his discharge would be upgraded or reinstated after 5 years.

3.  The applicant did not provide any evidence.

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 was inducted into the Army of the United States on 12 May 1965.  He completed training and was awarded military occupational specialty 91B (Medical Corpsman).
3.  The highest rank/grade he attained during his period of military service was private/E-2.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 15 October 1965, for being absent without leave (AWOL) from
30 September to 14 October 1966
* 27 October 1965, for failing to repair
* 7 December 1965, for being AWOL from 1 to 7 December 1965
* 7 January 1966, for being AWOL from 3 to 7 January 1966
* 28 January 1966, for being AWOL from 19 to 28 January 1966
* 25 May 1966, for being AWOL from 23 to 25 May 1966

5.  On 30 June 1966, he was convicted by a summary court-martial of being AWOL from 31 May to 21 June 1966.  The court sentenced him to confinement at hard labor for 30 days, forfeiture of pay, and reduction to private (PV1)/E-1.  The convening authority approved his sentence on 5 July 1966.

6.  The facts and circumstances surrounding his discharge are not available for review with this case; however, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 28 July 1966 under the provisions of Army Regulation 635-208 
(Personnel Separations – Discharge – Unfitness), for frequent Incidents of a discreditable nature with civil or military authorities, with issuance of an Undesirable Discharge Certificate.  This form also shows he completed 11 months and 19 days of total active service with 89 days of time lost.

7.  On 14 December 1972, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

8.  Army Regulation 635-208, in effect at the time, set forth the policy for the administrative separation of enlisted personnel for unfitness.  Paragraph 3 provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  The regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

9.  Army Regulation 635-200 (Personnel Separations), 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.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his under other than honorable conditions discharge should be upgraded and the evidence he submitted were carefully considered; however, they are not sufficiently mitigating to grant him the requested relief.

2.  The applicant's record is void of the facts and circumstances that led to his discharge.  However, his record contains DD Form 214 that shows he was discharged on 28 July 1966 under the provisions of Army Regulation 635-208 by reason of unfitness with an Undesirable Discharge Certificate.

3.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  The Army has never had a policy wherein a Soldiers' discharge is automatically upgraded due to the passage of time.  The applicant's record of service was not satisfactory, as evidenced by his extensive history of AWOL and is insufficiently meritorious to warrant upgrading his discharge to either an honorable or a general discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20110022040



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ABCMR Record of Proceedings (cont)                                         AR20110022040



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