IN THE CASE OF:	  

		BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130005674 


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 general discharge to honorable.

2.  The applicant states he was told to go home and await further orders.  He did just that.  After doing so, he was brought back and given a less than fully honorable discharge.  He does not believe he did or intended to do anything wrong.  As such, he believes an upgrade to a fully honorable discharge would be appropriate.

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 10 February 1958, 26 February 1962, and 22 April 1969.

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 California Army National Guard in pay grade E-1 on 13 May 1957.  He was ordered to active duty for training and entered active duty on 11 August 1957.  He was honorably released from active duty in pay grade E-2 on 10 February 1958.

3.  He subsequently enlisted in the Regular Army on 25 February 1960 for 3 years.  He completed training and he was awarded military occupational specialty (MOS) 311.10 (infantry communications specialist).  He was appointed to pay grade E-4 (temporary) on 24 October 1961.  He was honorably discharged from active duty on 26 February 1962 for the purpose of immediate reenlistment.

4.  He reenlisted in the Regular Army in pay grade E-2 (permanent)/E-4 (temporary) on 27 February 1962 for 6 years.  He held MOS 31B (radio mechanic).  He served in France from 11 September 1962 through 22 August 1964.  He was advanced to pay grade E-3 on 1 October 1963.

5.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, as follows:

* 21 August 1963 – for being absent from his unit from 19 to 20 August 1963
* 1 October 1963 – for being absent from his unit from 27 to 30 September 1963
* 14 January 1964 – for being absent from his unit and not reporting to duty on 7 January 1964

6.  On 23 April 1964, he was convicted by a summary court-martial of two specifications of breaking restriction on 2 and 4 April 1964.  He was sentenced to reduction to pay grade E-2 and 2 weeks of restriction.

7.  On 27 April 1964, his sentence was approved and ordered duly executed.  He was reduced to pay grade E-2 the same day.

8.  On 29 April 1964, the applicant's unit commander requested the applicant be barred from reenlistment.  The unit commander stated repeated efforts had been made to rehabilitate the applicant, but with no success.  The applicant had been a habitual misconduct offender and performed his duties in a barely acceptable manner.  He did not desire to have the applicant to serve under his command in any capacity.

9.  On 21 May 1964, the bar to reenlistment was approved.

10.  On 15 January 1965, he requested a hardship discharge.  On 18 January 1965, his request was denied.

11.  On 10 February 1965, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for speeding on post on 2 February 1965.

12.  He served in Germany from 29 December 1965 through 15 April 1967.  He was promoted to pay grade E-5 on 30 November 1966.

13.  His records contain Special Orders Number 92 issued by Headquarters, U.S. Army School/Training Center and Fort McClellan, AL, dated 16 April 1969, discharging him under honorable conditions in pay grade E-5 on 22 April 1969 at the expiration of his term of service (ETS) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 2, section VI.

14.  His DD Form 214 for this period shows he was discharged at the expiration of his term of service in pay grade E-5 on 22 April 1969 under the provisions of Army Regulation 635-200, chapter 2, and was issued a General Discharge Certificate.  His service was characterized as under honorable conditions.  He was credited with completing 6 years of net service during this period with 421 days of lost time.  He was also credited with 10 years, 9 months, and 14 days of total active service.

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

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-13(1), in effect at the time, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

	b.  Chapter 2, in effect at the time, prescribed policy and procedures for separating personnel who completed the period of service for which enlisted, inducted, or ordered to active duty.  The separation authority could direct a general discharge if such were merited by the Soldier's overall record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  The available evidence of record shows that although he was discharged by reason of ETS, it appears that his overall record, to include several nonjudicial punishments under Article 15, a conviction by a summary court-martial, extensive lost time, and a grade reduction from E-3 to E-2, warranted a general discharge.  It is presumed that his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

2.  Based on the available evidence, there is no basis for the upgrade of his discharge.  He has submitted neither probative evidence nor a convincing argument that he warrants a fully honorable discharge for his period of service from 27 February 1962 through 22 April 1969.  It appears the type of discharge directed was appropriate considering all of the facts of the case.

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

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)                                         AR20130005674



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ABCMR Record of Proceedings (cont)                                         AR20130005674



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