BOARD DATE:   15 May 2014

		DOCKET NUMBER:  AR20130016488


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 discharge under other than honorable conditions (UOTHC) and removal of the 142 days of lost time listed on his DD Form 214 (Armed Forces of the United Stated Report of Transfer or Discharge).

2.  The applicant states that:

	a.  He joined the Army to become a paratrooper, but ended up serving with "The Old Guard" in Washington, D.C.  He was told he could transfer if he didn't like the duty but his efforts were unsuccessful.  He was very young, became defiant, and began to drink too much.  

	b.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  The unit was short on personnel so he worked while on restriction.  

	c.  He received a special court-martial for an incident that happened while he was intoxicated.  He didn't realize the impact that would have on him later in life.

	d  He was never absent without leave (AWOL) from his unit.  He never left his post while on guard duty.  The only time he was really confined was for 4 months at Fort Meade, Maryland.

	e.  He now realizes there was no excuse for what he did and hopes his discharge can be changed.
3.  The applicant provides copies of his:

* Standard Form  88 (Report of Medical Examination), dated 10 December 1964, showing he was qualified for airborne duty
* DA Form 20 (Enlisted Qualification Record), page 4
* DA From 20B (Insert Sheet to DA Form 20-Record of Court-Martial Conviction)
* DD Form 214

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 14 December 1964.  He held military occupational specialty 36K (Field Wireman).

3.  The applicant's DA Form 20 shows in item 44 (Time Lost):

* 1 July-14 August 1966, 45 days due to confinement
* 10-11 March 1967, 2 days, due to AWOL
* 17 March-20 January 1967, 95 days due to confinement

4.  His DA Form 20B shows he was convicted by special court-martial:

	a.  On 1 July 1966 for attempted unlawful entry and unlawful entry.  He was sentenced to confinement for 3 months, reduction to private E-1, and forfeiture of $62.00 per month for 3 months. 

	b.  On 24 March 1967 for being AWOL from 10 March to 12 March 1967, and leaving his post as a sentinel before being properly relieved.  He was sentenced to confinement for 6 months and forfeiture of $86.00 per month for 6 months.

4.  The applicant's discharge processing documentation is not available.  However, his DD Form 214 shows he was administratively discharged on
21 June 1967 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  He had completed 2 years, 1 month, and 16 days of total active duty service.  His character of service is shown as UOTHC.  He was awarded or authorized the National Defense Service Medal.  Item 30 (Remarks) shows 142 days of lost time.

5.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

6.  Army Regulation 635-212 provided that an individual was subject to separation for unfitness when one or more of six conditions existed.  These included frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge under other than honorable conditions was normally considered appropriate.

7.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  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.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth the policy and procedures for the ABCMR.  Paragraph 2-9 provides 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.  The applicant did not provide any evidence to support his contentions.  His two courts-martial convictions clearly show a record of frequent incidents of a discreditable nature.

2.  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.

3.  In view of the foregoing, there is no basis for granting the applicant's request for a general or an honorable discharge.

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 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)                                         AR20100016226



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ABCMR Record of Proceedings (cont)                                         AR20130016488



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