IN THE CASE OF:	  

		BOARD DATE:  18 March 2014

		DOCKET NUMBER:  AR20130012447 


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 an honorable discharge.

2.  The applicant states during the time era he served prejudice was widely practiced.  His first sergeant, Oxxxx L. Fxxxxx, would sometimes refer to him as "Nixxxr" instead of his name.  His reaction behind his first sergeant's action earned him a general court-martial.  Many, many changes have taken place since 1963.  He was told by the Clark County Assessor office that he would have to have his general discharge upgraded to an honorable discharge in order to receive a tax break on his vehicle registration.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a completed 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 enlisted in the Regular Army on 30 November 1960, for 3 years. 
He held military occupational specialty 711.10 (clerk typist).  He was advanced to pay grade E-2 on 13 July 1961.  He served in Germany from 10 May 1961 through 11 April 1964.

3.  On 20 March 1962, he was convicted by a general court-martial of one specification of stealing U.S. currency (value of about $260.00) from a Soldier.  He was sentenced to confinement for 6 months, a reduction to pay grade E-1, and a forfeiture of pay for 6 months.  

4.  On 29 March 1962, the convening authority approved the sentence and ordered it duly executed and he was placed in confinement.  He was reduced to pay grade E-1 on the same day.

5.  He was promoted to pay grade E-4 (temporary) on 21 October 1963.

6.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on/for:

* 26 December 1963 - unlawfully assaulting a Soldier by striking him with an umbrella
* 12 March 1964 - for failing to report to his proper place of duty

7.  On 17 March 1964, the applicant's unit commander recommended the applicant be barred from reenlistment under the provisions of Army Regulation 635-200 (General Provisions of Discharge and Release of Enlisted Personnel).  In a certificate, the unit commander started:

   a.  The applicant had established a pattern of conduct which indicated he was not motivated to act in the manner expected of even the average Soldier.  In 1961, he received company punishment twice (January and December) for minor infractions.  Then on 29 March 1962, he was convicted by a general court-martial for larceny and was sentenced to 6 months confinement at hard labor.  Because of his duty performance in the Adjutant Section, 97th General Hospital, he was reassigned there upon his release.
   
   b.  On 26 December 1963, he was reduced to E-3 by Article 15 for assault and on 13 March 1964 he was reduced to E-1 by Article 15 for failure to repair [report].  For these reasons, it was recommended that he be barred from reenlistment.  There is no evidence the applicant submitted a statement in his own behalf.

8.  On 26 March 1964, the bar to reenlistment was approved.

9.  His record contains a DD Form 214 which shows he was discharged in pay grade E-2 on 23 April 1964, under the provisions of Army Regulation 635-205 (Discharge and Release for Convenience of the Government of Enlisted Personnel), paragraph 7, by reason of early release of overseas returnee.  His service was characterized as under honorable conditions (general).  He completed 2 years, 11 months, and 22 days of net active service with 152 days of time lost.

10.  Army Regulation 635-205, in effect at the time, set forth the conditions under which enlisted personnel could be discharged or released for the convenience of the Government.  Paragraph 7 authorized the separation of enlisted personnel with less than 3 months remaining to serve upon their return to the United States from overseas (Overseas Returnees).  

11.  Army Regulation 635-200, in effect at the time, outlined the factors governing the issue of a General Discharge Certificate in Section III.  Paragraph 10 contained the policy regarding the issue of a general discharge to substandard personnel.  Sub-paragraph b(2) stated a bar to reenlistment would be issued to substandard performers and that a certificate summarizing the basis for the bar to reenlistment would be prepared and referred to the individual concerned who would be allowed to prepare a statement as required by Army Regulation 640-98 (Filing of Adverse Matter in Individual Records and Review of Intelligence Files Consulted Prior to Taking Personnel Action). 

12.  Army Regulation 635-200 also stated 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 acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's unit commander recommended the applicant be barred from reenlistment based on the applicant's conviction by a general-court martial and two punishments under Article 15 which resulted in his reductions to pay grade E-2 and E-1.  A certificate shows the unit commander stated that the applicant had established a pattern of conduct which indicated he was not motivated to act in the manner expected of even the average Soldier.  There is no evidence the applicant submitted a statement in his own behalf.

2.  The applicant's contentions were carefully considered; however, there is no evidence of record and he did not provide sufficient evidence showing he was unjustly discharged as a result of prejudice practices.  He also provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting the applicant 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)                                         AR20130012447



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ABCMR Record of Proceedings (cont)                                         AR20130012447



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