IN THE CASE OF:
BOARD DATE: 12 March 2014
DOCKET NUMBER: AR20130012452
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 be upgraded to a general discharge.
2. The applicant states:
* this was the only incident in 2 years, 3 months, and 2 days
* the punishment far exceeds the incident of being absent without leave for four hours
* he never had any problems with military service prior to this incident
* in November 1956 he had an overnight pass
* he requested the hotel clerk to call him around 6 a.m., but they did not call and he woke up around 9 a.m. and returned to his unit
* he was detained at the gate to the post and turned over to his unit
* he was sent to the post stockade to await court-martial
3. The applicant provides:
* a Certification of Military Service
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
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 military records are not available for review. His record is void of the specific facts and circumstances surrounding his discharge action.
However, this case is being considered using reconstructed records that primarily consists of the records provided by the applicant.
3. His DD Form 214 shows:
* he enlisted in the Regular Army on 14 October 1954
* his military occupational specialty was 511.10 (carpenter)
* he had 43 days of lost time
* on 27 February 1957, he was discharged under other than honorable conditions 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 2 years, 3 months, and 2 days of creditable active service
4. 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.
5. 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.
6. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 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's contentions were carefully considered. However, 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.
2. 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 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) AR20130012452
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ABCMR Record of Proceedings (cont) AR20130012452
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