IN THE CASE OF:
BOARD DATE: 6 January 2015
DOCKET NUMBER: AR20140007745
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, an upgrade of his undesirable discharge to honorable.
2. The applicant states:
* he was young
* he prays for a discharge upgrade
* he is older now and knows better
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States 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 born on 11 June 1950. He enlisted in the Regular Army at 18 years of age on 16 July 1968 for a period of 2 years. He completed his training and was awarded military occupational specialty 11B (light weapons infantryman).
3. On 4 September 1968, nonjudicial punishment was imposed against him (failing to go at the time prescribed to his appointed place of duty).
4. On 27 February 1969, he was convicted by a special court-martial of being absent without leave (AWOL) from 3 October 1968 to 6 November 1968 and from 25 November 1968 to 18 January 1969. He was sentenced to reduction to E-1 and hard labor without confinement for 3 months. On 27 February 1969, the convening authority approved the sentence, but suspended the portion adjudging hard labor without confinement for 3 months.
5. His records are void of the specific facts and circumstances surrounding his discharge action; however, his DD Form 214 shows he was discharged under other than honorable conditions on 16 April 1970 under the provisions of Army Regulation 635-212 (Personnel Separations Discharge Unfitness and Unsuitability). He completed 7 months and 21 days of total active service with 409 days of lost time. The separation program number 28B shown on his DD Form 214 represents unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.
6. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. Paragraph 6a(1) provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.
7. Army Regulation 635-200 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. Although the applicant claims he was young, he was 18 years of age when he enlisted and he successfully completed training. Age is not a sufficiently mitigating factor. There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.
2. In the absence of evidence to the contrary, it must be presumed that the applicant's separation processing was administratively correct and in conformance with applicable regulations. Without the discharge packet to consider, it is presumed that the authority and reason for his discharge were commensurate with his overall record of service.
3. In view of the foregoing information, there is an insufficient evidentiary basis for granting the applicant's requested relief.
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) AR20140007745
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ABCMR Record of Proceedings (cont) AR20140007745
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