IN THE CASE OF:	  

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140014029 


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 under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD) or a general discharge (GD).  

2.  The applicant states:

* his discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action
* he went absent without leave (AWOL) when he was denied emergency leave due to the death of his father
* he was not afforded legal assistance prior to his discharge
 
3.  The applicant provides:

* a death certificate
* newspaper article 
* DD Form 4 (Enlistment Record - Armed Forces of the United States)
* DA Form 20 (Enlisted Qualification Record)
* DA Form 24 (Service Record)

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 30 March 1955 for a period of
3 years.  On 29 March 1958, he reenlisted for a period of 6 years.  The highest rank/grade he attained while serving on active duty was sergeant/E-5.  However, at the time of separation, he held the rank/grade of private/E-1.

3.  Special Court-Martial Order Number 33, issued by 2d Guided Missile Group, Fort Bliss TX, dated 17 November 1960 shows he was found guilty of failure to maintain sufficient funds for payment of checks on 26, 27, and 29 September 1960; 1 October 1960 (two specifications); and on 3 October 1960.  His punishment consisted of reduction to pay grade E-3 and a forfeiture of $20 pay for 4 months.   

4.  Special Court Martial Orders Number 228, issued by Special Troops, U.S. Army Air Defense Center, Fort Bliss, TX, dated 18 July 1961 shows he was found guilty of being absent without leave (AWOL) from 19 February to 8 May 1961.  He was reduced to the pay grade of E-1, confined at hard labor for 
6 months, and a forfeiture of $40 pay for 6 months.

5.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 which shows he was discharged on 28 September 1961, under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) with a separation program number of 28B (unfitness – frequent involvement in incidents of a discreditable nature with civil or military authorities) and an under other than honorable conditions character of service.  The DD Form 214 also shows 
148 days of lost time.

6.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  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, at the time, an Undesirable Discharge Certificate was normally considered appropriate.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a provides that an HD 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 GD 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 contentions are noted; however, the evidence of record does not support his request for an upgrade of his discharge.

2.  The complete facts and circumstances surrounding his discharge are not available for review; however, his record shows he was convicted by a court-martial on two occasions.  His record shows he had 148 days of lost time.

3.  In the absence of evidence to the contrary, the presumption of administrative regularity must be applied.  As such, even though his records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  His discharge appears appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  The evidence shows he was AWOL and he failed to maintain sufficient funds for payment of checks on six different occasions.  Therefore, based on his record of indiscipline, his service does not merit an upgrade of his discharge to an HD or a GD.

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)                                         AR20140014029



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ABCMR Record of Proceedings (cont)                                         AR20140014029



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