BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140013506 


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 (UD) be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states:

   a.  his commander announced the Christmas leave policy was to allow those who were married with children to go on leave first;
   
   b.  he was married with two children and, therefore, shocked when the list of married Soldiers with children was published without his name;
   
   c.  he informed the commander, who appeared cold towards him and told him he would have to wait until after the New Year to take leave; and
   
   d.  he was heartbroken and made the decision to go see his family anyway and now regrets having done so.
   
3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* three character reference statements
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 20 (Enlisted Qualification Record) (page 3 only)
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’s record shows he enlisted in Regular Army on 17 June 1968.  He served in military occupational specialty 64A (Light Vehicle Driver).

3.  His DA Form 20 shows he was promoted to private first class (PFC/E-3) on 23 October 1968 and this was the highest rank he attained while serving on active duty.  It also shows he was twice reduced and his last reduction was to private (PVT)/E-1 on 3 October 1969.

4.  Item 44 (Time Lost Under Section 972, Title 10, USC) of the applicant's 
DA Form 20 shows he accrued 270 days of lost time due to multiple occasions of AWOL or confinement between 16 December 1968 and 27 October 1969.

5.  A DA Form 20B (Insert to DA Form 20 – Record of Court-Martial Conviction) shows he was convicted by court-martial on the following dates as indicated:

* 25 February 1969 - special court-martial (SPCM), for being AWOL on two separate occasions 
* 26 September 1969 - SPCM, for being AWOL on two separate occasions

6.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, there is a DD Form 214 on file that shows he received a UD on 29 October 1969.  This document also shows he completed a total of 7 months and 14 days of creditable active military service and accrued 270 days of time lost.

7.  The applicant's DD Form 214 also shows he was separated under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) and assigned separation program number (SPN) 28B, which shows he was separated for unfitness (frequent involvement in incidents of a discreditable nature with civil or military authorities).

8.  On 6 May 2014, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however, his application exceeded the ADRB's 15-year statute of limitations.  Therefore, he was advised to apply to this Board.

9.  The applicant provides three character references from individuals who attest that he is:

* an honorable man worthy of great respect
* a person of integrity who is committed to his church, family, employment, friends, community, and fellow man
* a willing helper, positive influence, and great role model

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an honorable discharge (HD) or GD if warranted by the member's overall record of service; however, a UD was normally considered appropriate for members separated under these provisions.

11.  Army Regulation 635-200 (Active Duty Enlisted Administration Separations) currently provides the Army's enlisted administrative separation policy:

   a.  Army Regulation 635-200, 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.  Army Regulation 635-200, 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 contends his UD should be upgraded because he now wishes he would have done things differently.  This claim is insufficiently mitigating to grant the requested relief.

2.  His record is void of a separation packet that contains the specific facts and circumstances surrounding his separation processing for his final period of active duty service.  However, the record contains a properly-constituted DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-212 and that he was assigned a SPN of 28B, which shows he was separated for unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).  This document carries with it a presumption of government regularity in the discharge process.  In the absence of evidence to the contrary it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record of misconduct clearly diminished the overall quality of his service below that meriting the issuance of an HD or GD by the separation authority at the time of discharge, or an upgrade of his discharge at this late date. Accordingly, there is no basis upon which to grant the 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)                                         AR20140013506





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ABCMR Record of Proceedings (cont)                                         AR20140013506



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