IN THE CASE OF:	  

		BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140011779 


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 undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states the characterization of his service was unfair because he completed nearly the entire period of his enlistment.  He acknowledges that he did a few things wrong and that he received nonjudicial punishment (NJP); however, he does not believe he should be punished with the discharge for the rest of his life.  He requests that his discharge be corrected to reflect his complete record of service because he served his country with pride.

3.  The applicant provides no documentary evidence in support of his application.

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 (RA) on 1 November 1972 for a period of 3 years.  Upon completion of training he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).

3.  The applicant accepted NJP on six occasions for violations of the Uniform Code of Military Justice (UCMJ), as follows:

* for being absent from his appointed place of duty on four separate occasions (30 May 1973, 9 January 1974, 16 October 1974, and 30 April 1975)
* willfully disobeying a lawful order on 9 December 1974
* failing to remain at his appointed place of duty on 31 January 1975

4.  The applicant was convicted at three separate summary courts-martial for violations of the UCMJ, as follows:

* on 27 July 1973, for failing to obey a lawful order and for willfully failing to report for duty on 16 July 1973
* on 7 September 1973, for being absent without leave (AWOL) from
1 August 1973 to 29 August 1973
* on 7 February 1974, for behaving with disrespect toward his superior commissioned officer on 21 January 1974

5.  A review of the applicant's military personnel records failed to reveal a copy of the applicant's administrative separation packet.

6.  Headquarters, 1st Infantry Division Rear (Provisional), Fort Riley, KS, Special Orders Number 5, dated 8 October 1975, discharged the applicant from the RA, effective 9 October 1975, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(1), with a
DD Form 258A (Undesirable Discharge Certificate).

7.  On 9 October 1975, the applicant requested a separation document explaining the narrative reason and narrative description of the authority for his separation code and the reenlistment eligibility (RE) code.  The Chief, Separation Branch, 1st Infantry Division Rear (Provisional), Fort Riley, KS, provided the following information to the applicant –

* Narrative description for separation:  Unfitness – Frequent involvement of a discreditable nature with authorities
* Authority for separation:  AR 635-200, paragraph 13-5a(1)
* Separation Program Designator (SPD) Code:  JLB
* RE (Reentry) Code:  RE-4
8.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 9 October 1975 under the provisions of AR 635-200, paragraph 13-5a(1), with an under other than honorable conditions characterization of service.  He completed 2 years, 10 months, and 9 days of net active service during this period that included a total of 30 days of time lost.  It also shows in –

* item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) –

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar
* First Class (Sharpshooter) Marksmanship Qualification Badge with Grenade Bar

* item 27 (Remarks), in pertinent part, Training:

* Wheeled Vehicle Mechanic
* Race Relations
* Prescribed Load List

9.  A review of the applicant's military personnel records failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

10.  AR 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.

	a.  Chapter 13, in effect at that time, provided for separation of enlisted members found to be unfit or unsuitable for further military service.  Separation action would be taken when, in the commander's judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unfitness under this regulation was characterized as undesirable, except that an honorable or under honorable conditions discharge could be issued if warranted by the particular circumstances in the Soldier's case.

   b.  Chapter 3, 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.
   c.  Chapter 3, 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.

11.  AR 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.  The applicant contends that his undesirable discharge should be upgraded because he completed almost the entire period of his enlistment and his discharge should reflect his complete record of service.

2.  The evidence of record shows the applicant's military training, awards and decorations, creditable service, and time lost are recorded on his separation document, along with the narrative reason and authority for his separation.  Thus, it is concluded that the DD Form 214 reflects a complete and accurate record of the applicant's period of service that is under review.

3.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, in the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed is presumed to have been, and still is, appropriate.

4.  During the period of service under review, the evidence of record shows the applicant received NJP on six occasions for various violations of the UCMJ and he was convicted by summary courts-martial on three occasions for several violations of the UCMJ.  Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

5.  In view of the foregoing, there is an insufficient 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 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)                                         AR20140011779



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ABCMR Record of Proceedings (cont)                                         AR20140011779



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