IN THE CASE OF:	  

		BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140008554 


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 be upgraded to an honorable discharge.

2.  The applicant states he has waited 42 years to fix a bad mistake.  He asks that the Board review his 6 good years of service and the service he has provided to the working men of America.  He was having family problems in 1970 while on drill sergeant status and started drinking.  He lost his wife and child and everything started going downhill.  He has not consumed alcohol in 21 years.  He was the president of the local union and led that union for 15 years and went on to be a council representative.  He is now retired and can be of service in the American Legion.  He would also like to have a flag when he dies.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 19 October 1966
* DD Form 214 for the period ending 15 September 1972
* DA Form 20 (Enlisted Qualification Record)
* Letter of Commendation
* Army Europe (AE) Form 2398 (Personal Evaluation Sheet of Accused)

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 2 July 1964, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 11E (Armor Crewman).  On 21 October 1966, he reenlisted for 6 years.  The highest rank he held was staff sergeant/pay grade E-6.

3.  He provides a Letter of Commendation, dated 26 March 1970, showing he was selected as drill sergeant of the cycle.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice as follows:

* on 9 September 1970, failing to go at the time prescribed to his place of duty, breaking restriction, being absent without leave (AWOL) from on or about 20-21 August 1970 and on or about 21-24 August 1970
* on 2 March 1971, for being AWOL from on or about 27-29 January 1971
* on 17 November 1971, for failing on two occasions to go at the time prescribed to his place of duty and operating a privately-owned vehicle without a valid U.S. Army Europe driver's license

5.  A DA Form 268 (Report to Suspend Favorable Actions (FLAG)), dated 16 January 1972, shows he was pending special court-martial for an unidentified alleged incident.

6.  On 29 June 1972, he received NJP for failing to go at the time prescribed to his appointed place of duty, being AWOL from on or about 5-6 June 1972, and willfully disobeying a lawful order.

7.  An AE Form 2183 (Enlisted Personnel Data), dated 5 July 1972, shows he was flagged for being under investigation for the possibility of bigamy, being AWOL, and failure to report to duty.

8.  A DD Form 493 (Extract of Military Records of Previous Convictions), dated 6 July 1972, shows on 5 June 1972 he was convicted by a special court-martial for stealing approximately 201 German marks on 9 December 1971.

9.  An undated AE Form 2398 completed sometime after 5 June 1972 shows his immediate commander recommended the applicant be tried by special court-martial.  In the Evaluation of Accused block of the form, his commander stated that, after repeated counseling, he had failed to respond in a positive manner.  His job performance was far below acceptable standards, and this was coupled with constant indebtedness.  The court-martial charges preferred are not available for review.

10.  His discharge packet is not available for review.  However, his records show that on 15 September 1972 he was discharged from active duty.  The DD Form 214 issued at that time shows a separation program number of 246, denoting he was discharged under the provisions of chapter 10, Army Regulation 635-200 - for the good of the service.  This form shows his service was characterized as under other than honorable conditions.  He was issued an Undesirable Discharge Certificate.

11.  His DD Form 214 further shows he completed 5 years, 10 months, and 21 days of net creditable active military service this period with 2 years, 3 months, 19 days of prior active service.  This form shows he had 4 days of time lost.

12.  The applicant's records document no acts of valor, significant achievement, or service warranting special recognition.

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

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veteran's Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

   c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

15.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  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 evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  He received NJP on four occasions and was convicted by a special court- martial.  He had 4 days of time lost.  Evidence indicated he was recommended for a subsequent special court-martial.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  To be discharged under the provisions of Army Regulation 635-200, chapter 10, he would have voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he would have waived his opportunity to appear before a court-martial.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

4.  In the absence of evidence to the contrary, the presumption of administrative regularity must be applied.  As such, even though the applicant's records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations.
5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for programs or benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In view of the foregoing, there is no basis for granting the applicant a general or an honorable 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)                                         AR20140008554



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ABCMR Record of Proceedings (cont)                                         AR20140008554



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