IN THE CASE OF:
BOARD DATE: 10 June 2014
DOCKET NUMBER: AR20130016759
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 undesirable discharge.
2. The applicant states:
a. He was drafted when he was 18. He had a hard time taking orders and adapting to the Army. After a couple of years he was discharged for failure to adapt. He was unaware of the adverse impact the bad discharge would have on his life. Regardless of the circumstances he was able to acquire a good job and provide for a family.
b. Today, he has been happily married for 35 years. He has raised two children and has not gotten into trouble with the law.
c. He regrets the action of a weak moment in his life. He is aware of the adverse impact his actions caused the military and is deeply sorry. He has lived most of his life with the repercussions of his discharge and he has learned his lesson.
3. The applicant provides his DD Form 214 (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 was inducted into the Army of the United States on 5 July 1967 as a 20-year old high school graduate.
3. Notwithstanding nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) from 4 to 10 September 1967, he completed basic and advanced individual training.
4. The applicant was awarded military occupational specialty 81E as an illustrator and was advanced to private first class (PFC/E-3) on 7 February 1968. He also went AWOL that day.
5. He subsequently received another NJP and two special court-martial convictions, all for AWOL offenses.
6. The details of his separation are not contained in the available record.
7. On 31 October 1969, he was separated with an undesirable discharge for frequent incidents of a discreditable nature under the provisions of Army Regulation 635-212. He had served approximately ten-and-a-half months of creditable service.
8. Army Regulation 635-212 in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a stated 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 was normally considered appropriate.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:
a. 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 members 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.
10. Army Regulation 15-185 sets forth the rules and processes for the functions of the ABCMR. Paragraph 29 (Burden of proof) states, "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. Although the details of separation are unavailable, his record of two NJPs and two special court-martial convictions and about twice as much AWOL time as creditable service clearly is evidence of frequent incidents of a discreditable nature.
2. The applicant offered nothing to demonstrate an error of injustice in the discharge or to invalidate the presumption of regularity.
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) AR20130016759
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ABCMR Record of Proceedings (cont) AR20130016759
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