BOARD DATE: 29 August 2013
DOCKET NUMBER: AR20130000869
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 to honorable.
2. The applicant states:
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows his character of service as under other than honorable conditions
* he was told his discharge would be upgraded in "X" amount of years
* it has been over 40 years
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 20 September 1961 for a period of 3 years. He completed his training and was awarded military occupational specialty 111.00 (light weapons infantryman).
3. On 11 April 1962, he was convicted by a summary court-martial of forgery. He was sentenced to hard labor without confinement for 30 days, forfeiture of $55.00, and reduction to E-1. On 11 April 1962, the convening authority approved the sentence.
4. On 18 April 1962, he was convicted by a summary court-martial of going from his appointed place of duty (hard labor detail) without authority. He was sentenced to confinement at hard labor for 30 days and forfeiture of $55.00 pay. On 18 April 1962, the convening authority approved the sentence.
5. On 11 May 1962, he was convicted by a special court-martial of disobeying a lawful command. He was sentenced to confinement at hard labor for 6 months and forfeiture of $55.00 pay per month for 6 months. On 17 May 1962, the convening authority approved the sentence.
6. His record is void of the specific facts and circumstances surrounding his discharge action. However, his DD Form 214 shows he was discharged under other than honorable conditions on 14 June 1962 under the provisions of Army Regulation 635-208 (Personnel Separations Discharge Unfitness) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. He completed a total of 6 months and 29 days of creditable active service with 57 days of lost time.
7. There is no evidence that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
8. Army Regulation 635-208, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness. Individuals would be discharged by reason of unfitness with an undesirable discharge when it had been determined that an individual's military record was characterized by discredit, including frequent incidents of a discreditable nature with civil or military authorities.
9. Army Regulation 635-200 (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 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.
10. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines the characterization of service or the reason for discharge, or both, was improper or inequitable.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he was told his discharge would be upgraded in "X" amount of years; however, a discharge upgrade is not automatic.
2. He contends it has been over 40 years; however, the passage of time is normally not a basis for upgrading a discharge.
3. In the absence of evidence to the contrary, it must be presumed that his separation processing was administratively correct and in conformance with applicable regulations. Without the discharge packet to consider, it is presumed the authority and reason for his separation was commensurate with his overall record of service.
4. In view of 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 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.
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