IN THE CASE OF:. 

		BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20130017112 


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 an honorable discharge.

2.  The applicant states his discharge occurred a long time ago and he has since changed.  At the time there was a lot of stress in his personal life along with being in the military.  He didn't think about having his discharge changed until now.  He is in poor health and has no medical insurance.  He has an enrollment that he will send to his local Department of Veterans Affairs (VA) facility for health care once his discharge is upgraded.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 26 August 1964
* three reference letters

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 12 September 1961, he enlisted in the Regular Army for 3 years.  

3.  He was assigned to Company A, U.S. Army Special Forces Training Group (USA SFTG) at Fort Bragg, NC from 13 March 1963 to 1 August 1963.  He received conduct and efficiency ratings of "fair."  He accepted nonjudicial punishment (NJP) on:

* 2 May 1963 for being absent from his appointed place of duty
* 29 May 1963 for failing to obey a lawful order from a commissioned officer
* 8 July 1963 for failing to repair for guard mount

4.  He was assigned to Troop B, 17th Cavalry at Fort Campbell, KY from 
26 August 1963 to 1 April 1964.  

	a.  On 27 March 1964, he was tried before a summary court-martial.  He pled guilty and was found guilty of being absent without leave (AWOL) from on or about 4 February 1964 to on or about 13 March 1964.

	b.  He received conduct and efficiency ratings of "unsatisfactory" for the period 3 February to 1 April 1964.

5.  On 2 April 1964, he was assigned to Company D, 66th Armor at Fort Campbell, KY.  He went AWOL from 7 April 1964 to 11 May 1964.  On 15 June 1964, he was tried before a special court-martial.  He pled guilty and was found guilty of being AWOL from on or about 7 April 1964 to on or about 11 May 1964.

6.  The applicant's discharge packet was not available for review.

7.  On 26 August 1964, the applicant was discharged from the service due to his involvement in frequent incidents of a discreditable nature with civil or military authorities under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) and issued an Undesirable Discharge Certificate.  The applicant had served 2 years, 4 months, and 29 days of creditable active service that was characterized as under other than honorable conditions.  He had 196 days of time lost.  

8.  The applicant provided three letters from his neighbors.  They attest to his being a good neighbor who is always willing to help others.  He is a quiet and peace-loving person who works hard to be a good influence on others.  He is a trustworthy person and an outstanding friend and citizen of the community.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the that board's 
15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  An honorable discharge was furnished when the individual had conduct ratings of at least "good," had efficiency ratings of at least "fair," had not been convicted by a general court-martial, and had not been convicted more than once by a special court-martial.  The regulation also provided that an individual may, where otherwise ineligible, receive an honorable discharge if he had, during his current enlistment, period of obligated service, or any extensions thereof, received a personal decoration, or was separated as a result of a disability incurred in line of duty.

	b.  A general discharge under honorable conditions was issued to an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.  A discharge under honorable conditions was authorized if an individual had been convicted of an offense by general court-martial or convicted by more than one special court-martial in the current enlistment.  However, this decision was discretionary. 

11.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation 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.  He received a conduct rating of "fair" while assigned to Company A, USA SFTG and a conduct rating of "unsatisfactory" while assigned to Troop B, 
17th Cavalry.  Therefore, he is not eligible for an honorable discharge.

2.  His record of NJP on three occasions, one summary court-martial, and one special court-martial show his lack of respect for military authority and his unwillingness to conform to military standards.  He had 196 days of time lost.  Therefore, his service is determined to be unsatisfactory.

3.  Although the applicant's separation packet was not available it is presumed that the Army's administrative processing of the applicant for discharge is correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

5.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits or upgrade discharged based on the passage of time.  Granting veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care should be addressed to the VA.  

7.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to a general, under honorable conditions 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 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)                                         AR20130017112



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ABCMR Record of Proceedings (cont)                                         AR20130017112



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