BOARD DATE:	  17 April 2014

		DOCKET NUMBER:  AR20130012970 


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 upgrade of his discharge.

2.  The applicant states in an attached statement that the undesirable discharge was somewhat fair but then it was changed to other than honorable and finally to dishonorable.  He missed a discharge review hearing because he was a seaman and was at sea.  He recently discovered his discharge was changed to dishonorable.  With a dishonorable discharge he can't even get a job as a taxi driver. 

3.  The applicant provides a Statement of Service from the American Veterans (AMVETS) Department of California and his personal statement. 

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.  On 27 April 1970, the applicant enlisted in the Regular Army.  He completed training, was stationed in Germany and was advanced to pay grade E-3.  On 28 December 1970, he reenlisted and was advanced to pay grade E-4. 

3.  In May 1971, he committed the first offense of record and received nonjudicial punishment (NJP) for absence from his appointed place of duty.  

4.  In November 1971, he received a letter of appreciation for achieving a high score for the readiness of his vehicle in a roadside on-the-spot inspection.

5.  The applicant received four additional NJPs and three court-martial convictions for offenses of – 

* absence from his appointed place of duty (4 times)
* absence without leave (AWOL)
* assault
* communicating a threat to kill
* robbery of a purse by force and violence
* stealing from a fellow Soldier
* possession of marijuana (two times)
* possession of amphetamines

6.  The applicant’s discharge packet is not available.

7.  On 13 April 1973, under the provisions of Army Regulation 635-200, chapter 13, he was discharged for unfitness under conditions other than honorable due to frequent incidents of a discreditable nature.  He had served 1 year, 10 months, and 9 days of creditable active service during the period under review and had 257 days lost time.

8.  On 7 September 1978, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge

9.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel:

	a.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 


	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states 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.  

10.  The regulations governing the Board’s operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's undesirable discharge has always been characterized as being under conditions other than honorable.  There has been no change.  The applicant offers no explanation as to why he thinks he has a dishonorable discharge, unless that was a Department of Veterans Affairs determination.

2.  In the absence of evidence to the contrary the discharge proceedings are presumed to have been conducted in accordance with law and regulations applicable at the time.  The character of the discharge appears to be commensurate with the applicant's overall record of military service.
The applicant has submitted neither probative evidence nor a convincing argument in support of the 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 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)                                         AR20130012970





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ABCMR Record of Proceedings (cont)                                         AR20130012970



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