IN THE CASE OF:  

		BOARD DATE:   4 September 2012

		DOCKET NUMBER:  AR20120004836


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 discharge under conditions other than honorable to honorable.

2.  The applicant states his record will show he was a good Soldier until he came back from Korea and his mother was dying.  He stayed home with her until she passed away.  He lost 157 days subsequent to his normal separation date.  He is a patriot of the United States of America and would like to die as one.

3.  The applicant provides no additional 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 enlisted in the Regular Army on 3 February 1965.  He held military occupational specialty 72C (Telephone Switchboard Operator).

3.  The applicant's record shows:

	a.  during his initial assignment at Fort Gordon, GA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 9 July 1965 for being AWOL from 6 to 7 July 1965;

	b.  while serving in Korea, he accepted NJP on 9 September 1966 for violating a lawful general regulation on 7 September 1966; and

	c.  after he returned to the United States, he was found guilty by a general court-martial on 9 July 1968 of being AWOL from 18 July 1967 to 15 May 1968.

4.  The applicant's discharge processing documentation is not available.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was administratively discharged on 20 September 1968 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  He completed 2 years, 6 months, and 6 days of total active service.  His character of service is shown as under conditions other than honorable.  He was awarded or authorized the National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar (M-14).  Item 30 (Remarks) shows 402 days of lost time.

5.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

6.  Army Regulation 635-212 provided that an individual was subject to separation for unfitness when one or more of six conditions existed.  These included frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge under other than honorable conditions was normally considered appropriate.

7.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 3-7b states 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.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth the policy and procedures for the ABCMR.  Paragraph 2-9 provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not provide any evidence to support his contentions.  His two NJP's and general court-martial conviction clearly show a record of frequent incidents of a discreditable nature that started before he went to Korea.

2.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

3.  In view of the foregoing, there is no basis for granting the applicant's request for an honorable discharge.

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 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)                                         AR20100016226



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ABCMR Record of Proceedings (cont)                                         AR20120004836



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