IN THE CASE OF:
BOARD DATE: 1 April 2014
DOCKET NUMBER: AR20130013066
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 a general discharge (GD).
2. The applicant states he was told his discharge would be automatically upgraded after two years but it was not. He believes his record supports receipt of a GD.
3. The applicant provides no supporting documentation.
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 served on active duty from 25 August 1970 through 18 October 1972 with assignment to Germany for approximately one and a half years.
3. He is shown to have been absent without leave (AWOL) on five occasions -
* 18 January 1971 - 10 February 1971
* 15 February 1972 - 16 February 1972
* 30 May 1972 - 15 July 1972
* 17 July 1972 - 25 July 1972
* ? - 18 September 1972
4. For his last period of AWOL, the available records contain only a record of the date of his return to military control. He was placed in confinement at that time with a release from confinement several weeks later for the purpose of his return to the United States for separation.
5. The applicant received nonjudicial punishment (NJP) on 10 August 1971 for assault on a fellow Soldier.
6. He was found guilty on two occasions by special court-martial:
* 11 March 1971, for his 1st AWOL
* 12 April 1972, for his 2nd AWOL, breaking restriction, and assault on a civilian female
7. With the exception of a medical examination record which indicates the reason for the examination was for a chapter 10 separation, the available record contains no documentation of his discharge processing.
8. The applicant was discharged on 18 October 1972 under conditions other than honorable in accordance with Army Regulation 635-200, chapter 10. His DD Form 214 shows he had 1 year, 11 months, and 4 days of service with 80 days of lost time. The lost time notation does not include his last period of AWOL.
9. The applicant's record is devoid of any indication of award of any personal decorations, citations, certificates, favorable counseling statements, or any other indication of any commendable meritorious actions.
10. There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statutory limit.
11. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It provides the following:
a. Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldiers service generally has met the standards of acceptable conduct and performance of duty.
b. Paragraph 3-7b states that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD.
c. Chapter 10, as in effect at the time, provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the service.
12. Army Regulation 15185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. There is not now nor has there ever been any provision in law or regulation that allows for an automatic upgrade of any less than honorable discharge based solely on the passage of time.
2. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The type and character of the discharge is commensurate with his overall record.
3. Combining the factors of the applicant's five periods of AWOL, his NJP for assault, two special courts-martial with the lack of favorable entries in his records and the fact that his military record is devoid of significant service, the type and character of the discharge is commensurate with his overall record.
4. The applicant has not presented any evidence or argument to show his service met the standards of acceptable conduct and performance of duty for award of a general or higher characterization of service.
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) AR20130013066
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