IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140017265 


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, that his undesirable discharge (UD) be upgraded and that his records be corrected to show he had only 1 1/2 days of lost time due to being absent without leave (AWOL).

2.  The applicant states, in effect, that his record incorrectly shows he had
215 days of lost time due to being AWOL when in fact he was only AWOL 
1 1/2 days.  However, because his records show 215 days of AWOL he received a UD.  The presumption of regularity does not apply in his case because he had only 1 1/2 days of lost time.  He was held past his expiration term of service (ETS) date; he applied for reassignment, but he was denied.  Previously he had an honorable discharge.  He takes responsibility for his negative actions and apologizes for his conduct, but he was unjustly issued a UD and he has lived with it for 51 years.

3.  The applicant provides copies of a one-page statement explaining his application, his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge); DA Form 24 (Service Record); DA Form 1049 (Personnel Action), dated 5 April 1962, requesting reassignment; a sworn statement written by his supervisor; documents related to his civilian education; a Department of Veterans Affairs (VA) Rating Decision and his VA Hearing Transcript.





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.  All of the applicant’s records were not available for review by the Board; however, the documents provided by the applicant are sufficient to conduct a fair and equitable review of his case.

3.  On 11 September 1959, the applicant was serving in the Colorado Army National Guard (COARNG) when he was ordered to active duty for training.  He completed training and he was honorably released from active duty training on 
6 March 1960 and returned to his COARNG unit.  He was issued an honorable discharge for this period of service showing he completed 5 months and 26 days of active service.

4.  On 31 March 1960, he enlisted in the Regular Army for a period of 3 years and was transferred to Fort Campbell, Kentucky.

5.  The available evidence shows between the period 23 September 1960 and 
20 June 1963, nonjudicial punishment was imposed against him on the following occasions for:

* being disorderly and bring discredit upon the military service
* being AWOL for 1 1/2 days
* carrying a concealed weapon 
* being disrespectful in language towards a noncommissioned officer
* running a stop sign
* failure to go to his place of duty (guard mount)
* missing bed check
* failure to go to his place of duty (Reveille Formation)
* breach of the peace – fighting with a female

6.  The available evidence also shows that he was convicted by a special court-martial on three different occasions (1 November 1960, 12 August 1961, and 
13 July 1963).  His record of lost time shows he had: 

* 37 days due to being in military confinement during the period
7 December 1960 to 12 January 1961 
* 101 days during the period 12 August to 20 November 1961, due to being in confinement
* 1 day of lost time during on 16 December 1961, due to being AWOL
* 2 days of lost time due to being in civil confinement from 10 to 12 March 1962, as a result of being arrested for carrying a concealed weapon and breach of the peace  
* 72 days of lost time during the period 13 July to 24 September 1963, due to being in confinement

7.  The applicant's DA Form 1049, dated on 5 April 1962, requesting reassignment shows he volunteered for assignment to Korea and his company and battalion commanders recommended disapproval of his request due to the shortage of personnel in the unit.  The available evidence shows no further reference to this request.

8.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available evidence.  However, he provides a 
DD Form 214 which shows, on 28 September 1963, he was discharged under other than honorable conditions, under the provisions of Army Regulation 
635-208, for unfitness, based on involvement in frequent incidents of a discreditable nature with civil and/or military authorities.  He was issued an Undesirable Discharge Certificate.  He had completed 2 years, 10 months, and 22 days of active service during this enlistment and he had 215 days of lost time due to being AWOL and in confinement.

9.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel having undesirable habits and traits of character.  Section II of the regulation provided, in pertinent part, for the separation of enlisted personnel for unfitness based upon frequent incidents of a discreditable nature with civil and/or military authorities.  A UD was normally considered appropriate.

10.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel Separations) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  Paragraph 3-7b also 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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions and supporting documents have been carefully considered and appear to lack merit.  The applicant’s DD Form 214 does not reflect that he was AWOL for 215 days as he claims, it simply reflects the amount of lost time as a result of being AWOL and in military and civil confinement.  Lost time, regardless of how it occurred is still time that was not served honorably. 

4.  The applicant’s contention that he was unjustly held past his normal ETS was also found to lack merit because his normal ETS was properly adjusted to make up for lost time that was the result of his misconduct.  However, he was discharged before all of the lost time could be made up.

5.  The applicant’s contention that the Board cannot rely on the presumption of regularity in his case also appears to lack merit because the applicant has submitted no evidence to dispute the evidence of the records he provided with his application.  His disciplinary record alone was sufficient to warrant the discharge he received.

6.  The applicant’s contentions, while noted, are not sufficiently mitigating when compared to the repeated nature of his misconduct and his undistinguished record of service during such a short period of time.  The applicant’s overall record of service simply does not rise to the level of a general discharge.  Therefore, absent evidence to show otherwise, there appears to be no basis to upgrade his 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)                                         AR20140017265



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017265



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1