IN THE CASE OF:	  

		BOARD DATE:  8 January 2013

		DOCKET NUMBER:  AR20120010696 


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 (UD).  

2.  The applicant states he is in prison and went to a veterans’ meeting and was told he could apply for an upgrade of his discharge.  

3.  The applicant provides an American Legion letter of support and Social Security Administration (SSA) retirement, survivors, and disability insurance letter and accompanying medical documentation in support of his request.  

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 
20 November 1962.  He was trained in and awarded military occupational specialty 72B (Communications Center Specialist).  

3.  The record shows the applicant earned the Parachutist Badge, Expert Marksmanship Qualification Badge with Rifle Bar, and Driver Badge during his active duty tenure.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 7 February 1964 and his accrual of 136 days of time lost due to civil confinement.  

5.  On 24 August 1965, the applicant was convicted of attempting to commit a felony in the Criminal Court of Montgomery County, Tennessee and was sentenced to 11 months and 29 days in the Montgomery County Workhouse.

6.  On 3 September 1965, the unit commander recommended the applicant be discharged under the provisions of Army Regulation 635-206 (Personnel Separations), by reason of misconduct.  The unit commander cited the applicant’s civil conviction and his unsatisfactory after-hours conduct as the basis for taking the action.  

7.  The applicant acknowledged he had been counseled regarding the recommendation for his discharge for misconduct and that he was fully aware that this could result in his receiving a UD.  After being counseled on the rights available to him in connection with the discharge action, the applicant completed an election of rights in which he waived consideration of his case by a board of officers and to counsel.  

8.  On 15 September 1965, the applicant’s discharge was approved by proper authority who directed the applicant be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 27 September 1965, the applicant was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed a total of 2 years, 5 months, and 22 days of creditable active military service with 136 days of lost time due to civil confinement.  

9.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations. 

10.  Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section III prescribed the standards and procedures for processing cases of individuals who were being separated for misconduct.  
The separation authority could issue an honorable discharge (HD) or a general discharge (GD) if such were warranted based on the member's record of service.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the current Army policy for enlisted separations.

	a.  Paragraph 3-7a provides that an HD 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 provides that a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his discharge because has been carefully considered.  However, there is insufficient evidence to support this request .

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable law and regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history that includes acceptance of NJP and a civil conviction.  As a result, his UD accurately reflects the overall quality of his service.  Absent any evidence of record or independent evidence submitted by the applicant that shows an error or injustice in the discharge process, there is an insufficient evidentiary basis to support granting the 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)                                         AR20120010696



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ABCMR Record of Proceedings (cont)                                         AR20120010696



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