IN THE CASE OF:	  

		BOARD DATE:  29 August 2013

		DOCKET NUMBER:  AR20130002141 


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 his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states his UD should be upgraded because of hardship and because of his wife and children.

3.  The applicant provides:

* Letter dated 18 January 2013
* Two character references
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 Regular Army on 24 June 1968. He served in military occupational specialty (MOS) 51N (Water Supply Specialist).

3.  His DA Form 20 (Enlisted Qualification Record) shows, in item 44 (Time Lost Under Section 972, Title 10, USC), he accrued 229 days of lost time for being absent without leave (AWOL), dropped from the rolls (DFR), or in confinement on 5 separate occasions between 1 December 1968 through 24 August 1969.

4.  Pursuant to his pleas, the applicant was convicted by court-martial on two separate occasions for being AWOL during the periods indicated in the following orders:

* Special Court-Martial (SPCM) Order Number (#) 215, dated 12 February 1969 (1 December 1968 – 31 January 1969)

* SPCM Order #1106, dated 6 August 1969 (7 May – 22 July 1969)

5.  The applicant’s record is void of a complete separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, there is a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) on file that shows the applicant received a UD on 
25 August 1969.  This document also shows that he completed a total of 6 months and 18 days of creditable active military service and accrued 229 days of time lost.

6.  The applicant's DD Form 214 also shows he was separated under the provisions of Army Regulation 635-212, and that he was assigned a separation program number (SPN) of 28B, which shows he was separated for unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).

7.  The applicant submitted a DD Form 293 with his application to this Board.  However, he exceeded the Army Discharge Review Board's 15-year statute of limitations to appeal for a discharge upgrade.

8.  The applicant provides a two character reference statements from individuals who indicate he is a man of good reputation, a good friend, loyal, dependable, and a very good neighbor who would go the extra mile for anyone in need of help.
9.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an honorable discharge (HD) or general discharge (GD) under honorable conditions if warranted by the member's overall record of service; however, a UD was normally considered appropriate for members separating under these provisions.

10.  Army Regulation 635-5-1 (Separation Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  The regulation in effect at the time of the applicant’s discharge stipulated that SPN 28B was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-212 by reason of unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).

11.  Army Regulation 635-200 (Personnel Separations) currently provides the Army's enlisted administrative separation policy:

   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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded because of hardship and because of his wife and children.  This claim is insufficient to warrant the requested relief.

2.  The applicant's record is void of a separation packet that contains the specific facts and circumstances surrounding his separation processing for his final period of active duty service.  However, the record contains a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-212 and that he was assigned a SPN of 28B, which shows he was separated for unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).  This document carries with it a presumption of government regularity in the discharge process.  In the absence of evidence to the contrary it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record clearly shows a disciplinary history for multiple AWOL offenses totaling 229 days lost time and two resulting SPCM convictions.  This record of misconduct clearly diminished the overall quality of his service below that meriting the issuance of an HD or GD by the separation authority at the time of discharge, or an upgrade of his discharge at this late date.

4.  Additionally, there is no evidence of a hardship or of a family problem with his wife or child that affected his ability to serve.  There is also no evidence that he sought help through his chain of command for either of these reasons during his military service.

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)                                         AR20130002141





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ABCMR Record of Proceedings (cont)                                         AR20130002141



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