IN THE CASE OF:	  

		BOARD DATE:  1 November 2012

		DOCKET NUMBER:  AR20120007914 


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 honorable conditions discharge (general discharge) to an honorable discharge 
* restoration of his rank/grade of sergeant (SGT)/E-5
* a personal appearance hearing

2.  The applicant states:

* he was granted a less than honorable discharge due to discrimination
* he disagrees with the reason for his lost days
* he was not court-martialed or involved in any negative activities

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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.  On 24 July 1956, the applicant enlisted in the U.S. Army Reserve for a period of 6 years.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  On 17 January 1961, he was ordered to active duty.  The highest rank/grade he attained while on active duty was specialist four (SP4)/E-4.

3.  The record does not contain any evidence of discrimination nor does the applicant provide any.

4.  The applicant's DA Form 24 (Service Record) shows he was promoted to SP4 on 1 October 1958 by Special Order Number 26, Headquarters, 314th Infantry Regiment.

5.  Neither his DA Form 24, DA Form 20 (Enlisted Qualification Record), nor Army Military Human Resource Record (AMHRR) show an entry or special order promoting him to the rank/grade of SGT/E-5.

6.  A DD Form 458 (Charge Sheet), dated 27 July 1962, shows the applicant was charged with being absent without leave (AWOL) from on or about 17 July 1962 until on or about 26 July 1962.  He was tried and found guilty by a summary court-martial.  His sentence consisted of a one-month forfeiture of $70 and a suspended sentence of confinement to hard labor for one month until 27 November 1962.  The form also shows the comment, "…will continue to serve in the grade of SP4 unless the suspension of the confinement at hard labor is vacated…"

7.  A DD Form 458, dated 19 January 1963, shows the applicant was charged with being AWOL on 17 January 1963 during the hours 0001 to on or about 2145 hours.  He was tried and found guilty by a summary court-martial and sentenced to forfeiture of two-thirds of one month's pay.  The convening authority modified his sentence to forfeiture of $75 for one month. 

8.  On 6 February 1963, the applicant was discharged upon his expiration term of service with an under honorable conditions discharge.

9.  His DD Form 214 shows:

* his rank/grade as SP4/E-4
* he completed 2 years and 11 days of active service 
* he had 4 years, 5 months and 23 days of other service
* he had 9 days of lost time for the period 17 July through 25 July 1962

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation 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.  Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR.  The ABCMR Director may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under honorable conditions discharge (general discharge) to an honorable discharge was carefully considered.

2.  Regarding a personal appearance, Army Regulation 15-185 states applicants do not have a right to a formal hearing before the ABCMR; the decision to grant a formal hearing resides with the ABCMR Director whenever justice requires.  In this case, sufficient records exist to make a fair and impartial consideration of the applicant's request without a formal hearing.

3.  It appears his immediate commander and the separation authority considered his service record and recommended and approved an under honorable conditions discharge (general discharge).  

4.  The record does not contain any evidence of discrimination nor does the applicant provide any.  Therefore, this issue is without merit.

5.  The applicant's AMHRR is void of evidence and he does not provide any showing he was promoted to the rank/grade of SGT/E-5.  Therefore, this issue is without merit.  

6.  His overall service did not meet the standard required for an honorable discharge.  

7.  Based on the foregoing, there is an insufficient evidentiary 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)                                         AR20120007914



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ABCMR Record of Proceedings (cont)                                         AR20120007914



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