IN THE CASE OF:	  

		BOARD DATE:	   4 August 2015 

		DOCKET NUMBER:  AR20140020773 


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 discharge. 

2.  The applicant states that he is an upstanding citizen, has been married for 
40 years, and has five children.  He has never been on welfare and he has worked with handicapped children for 29 years.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 30 August 1967.

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.  On 21 July 1964, the applicant enlisted in the Regular Army.  He served as a field artillery basic specialist.  After completing a tour in Vietnam he was assigned to the 2nd Battalion, 504th Infantry, Fort Bragg, NC.

3.  The specific facts and circumstances of his discharge proceedings are not available for review; however, his record contains:

   a.  Special Court-Martial Order Number 51, issued by 82nd Airborne Division Artillery Battalion, Fort Bragg, NC, dated 10 June 1965 showing the applicant pled guilty and was found guilty of being AWOL from 29 March 1965 through
15 April 1965.

   b.  Special Court-Martial Order Number 1357, issued by Headquarters, Special Troops, U.S. Army Armor Center, Fort Knox, KY, dated 3 August 1967 showing the applicant pled guilty and was found guilty of being AWOL from
21 through 31 March 1967, 11 through 20 April 1967, and 2 May through 19 May 1967.

4.  Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of his DA Form 20 (Enlisted Qualification Record) shows he had the following additional lost time:

* 20 May to 2 July 1967 (Confinement)
* 26 July 1967 to [29 August 1967] (Confinement)

5.  His record contains a DD Form 214 that shows on 30 August 1967, he was discharged under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) with an undesirable discharge.  He completed 2 years, 11 months, and 3 days of creditable active service.  It further shows he had 131 days of time lost.

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 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by proper medical authority.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.


8.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) 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 available evidence does not support the applicant's request for an upgrade of his discharge.

2.  His records reveal a history of indiscipline and/or misconduct including two instances of court-martial and lost time totaling 131 days.  In the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  Based on the foregoing, there is an insufficient basis to support upgrading his discharge to an honorable discharge or to a general discharge under honorable conditions.


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)                                         AR20140020773





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ABCMR Record of Proceedings (cont)                                         AR20140020773



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