IN THE CASE OF

		BOARD DATE:	    14 August 2014

		DOCKET NUMBER:  AR20130022041 


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, in effect, upgrade of his undesirable discharge to a general discharge.

2.  The applicant states:

* His discharge should be upgraded so he can get medical benefits from the veteran's hospital
* His defense counsel did not defend him and he would not allow him to testify in his own behalf
* All his counsel did was sit there through the whole trial and he was discharged for just being absent without leave (AWOL) from formation

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 23 November 1963
* DA Form 26 (Record of Court-Martial Conviction)
* DA Form 20 (Enlisted Qualification Record)
* DD Form 4 (Enlisted Record – Armed Forces of the United States)
* DA Form 24 (Service Record)
* DA Form 2627 (Summarized Record of Proceedings Under Article 15, UCMJ), dated 22 May 1964

* DA Form 2627-1, dated 30 December 1963
* Self-authored letter, dated 30 November 2012
* Audiological Evaluation

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 March 1963.  He completed training as a light weapons infantryman.

3.  The applicant accepted nonjudicial punishment (NJP) on four separate occasions between 2 April 1963 and 22 May 1964, for the following offenses:

* Failure to comply with instructions of his squad leader
* Failure to repair for movement to the field (two specifications)
* Being AWOL from 25 December 1963 to 26 December 1963

4.  On 12 February 1964, he was convicted by a special court-martial of two specifications of being AWOL, from 20 January until 22 January 1964 and 24 January until 27 January 1964.  He was sentenced to a reduction in pay grade and confinement at hard labor.

5.  The facts and circumstances pertaining to the applicant's discharge are not available.  His DD Form 214 shows he was discharged on 27 July 1964, under the provisions of Army Regulation 635-208, for unfitness – frequent incidents of a discreditable nature with civil or military authorities.  He was issued an Undesirable Discharge Certificate.

6.  A review of the available records does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
7.  Army Regulation 635-208 (Enlisted Separations), then in effect, set forth the basic authority for separation of enlisted personnel for unfitness.  The regulation stated that individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined that an individual's military record was characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts.

8.  Army Regulation 635-200 (Personnel 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 provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his undesirable discharge should be upgraded to a general discharge has been noted.

2.  His record shows he accepted NJP on four separate occasions.  He was also convicted by a special court-martial as a result of his numerous offenses.  Although he may now believe that the type of discharge he received was too harsh, it properly reflects his overall record of service.

3.  The applicant has not shown error or injustice in the action taken by the Army in his case.  The fact that he is now seeking medical benefits is not sufficiently mitigating to warrant upgrading his discharge.

4.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20130022041



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ABCMR Record of Proceedings (cont)                                         AR20130022041



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