IN THE CASE OF:	  

		BOARD DATE:	  11 February 2014

		DOCKET NUMBER:  AR20130010075 


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 he served well, had one incident with his sergeant, departed absent without leave (AWOL) for 2 weeks, and turned himself in.

3.  The applicant provides no additional documents.

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 20 September 1966.  He served in military occupational specialty (MOS) 13A (Field Artillery Basic).
3.  His DA Form 20 (Enlisted Qualification Record) shows, in item 44 (Time Lost Under Section 972, Title 10, USC), that he accrued 179 days of lost time for being AWOL and due to confinement between the period 9 March through 15 December 1968.

4.  The applicant’s record reveals a disciplinary history that includes acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:

   a.  on 18 January 1968, for being AWOL from on or about 15 - 17 January 1968;

   b.  on 25 February 1968, for failing to go at the time prescribed to his appointed place of duty on 22 February 1968; and
   
   c.  on 26 March 1968, for being AWOL from on or about 9 - 24 March 1968.

5.  His DA Form 20B (Insert to DA Form 20 - Record of Court-Martial Conviction) also shows he was convicted by special court-martial on three separate occasions as indicated in the following orders:

* Special Court-Martial (SPCM) Order Number (#) 163, dated 3 June 1968, for breaking restriction on 15 May 1968
* SPCM Order #211, dated 7 August 1968, for being AWOL from on or about 3 - 30 July 1968
* SPCM Order #270, dated 14 November 1968, for being AWOL from on or about 17 - 29 October 1968

6.  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 on file that shows the applicant received a UD on 19 December 1968.  This document also shows that he completed a total of 1 year, 9 months, and 4 days of creditable active military service and accrued
179 days of time lost.

7.  The applicant's DD Form 214 also shows he was separated under the provisions of Army Regulation 635-200 and that he was assigned a separation program number (SPN) of 386, which shows he was separated for unfitness (established pattern of shirking).

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9. 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 386 was the appropriate code to assign Soldiers separated by reason of unfitness (established pattern of shirking).

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

   a.  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.

   b.  Army Regulation 635-200, 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 he served well, had one incident with his sergeant, and only departed AWOL once.  However, the evidence of record confirms an extensive disciplinary history that includes his conviction by SPCM on three separate occasions and his acceptance of NJP, also on three separate occasions.  Accordingly, his claim lacks merit.

2.  The applicant's record is void of a separation packet that contains the specific facts and circumstances surrounding his separation processing.  However, the record contains a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200 and that he was assigned an SPN of 386, which shows he was separated for unfitness (established pattern of shirking).  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 offenses which resulted in 179 days lost time, three SPCM convictions, and three NJPs.  This record of misconduct clearly diminished the overall quality of his service below that meriting the issuance of an honorable or general discharge by the separation authority at the time of discharge, or an upgrade of his discharge at this time.

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)                                         AR20130010075



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