IN THE CASE OF: BOARD DATE: 17 December 2015 DOCKET NUMBER: AR20150004961 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 the following: * an upgrade of his general discharge to an honorable discharge * a personal appearance before the Board 2. The applicant states as a disabled veteran he deserves the opportunity to have a good record and be a good citizen. He has been an excellent citizen in the United States. He has been a notary public of the State of Florida for almost 6 years serving people and disabled veterans. 3. The applicant provides copies of two letters from the Department of Veterans Affairs (VA). 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 the cases 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. 2. The applicant's military records show he was inducted into the Army of the United States on 30 October 1963 and he held military occupational specialty 56A (supply handler). He was advanced to pay grade E-2 on 1 March 1964. 3. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on/for: * 18 February 1964 – being absent without leave (AWOL) on the same day; his punishment included 7 days of restriction and extra duty * 2 July 1964 – failing to go to his appointed place of duty on 27 June 1964; his punishment included a forfeiture of $10.00 pay and 14 days of restriction and extra duty 4. On 8 September 1964, he was convicted by a special court-martial of one specification of being AWOL from 4 to 17 August 1964, one specification of failing to obey a lawful order from his superior noncommissioned officer on 22 August 1964, one specification of failing to go to his appointed place of duty on 22 August 1964, and one specification of going from his appointed place of duty without proper authority. He was sentenced to confinement at hard labor for 6 months and a reduction to pay grade E-1. 5. On 25 September 1964, the convening authority approved the sentence and ordered it duly executed and suspended the confinement. He was reduced to pay grade E-1 on the same day. 6. He was again advanced to pay grade E-2 on 26 March 1965. 7. On 2 July 1965, he accepted NJP, under Article 15, UCMJ, for failing to go to his appointed place of duty; his punishment included 14 days of restriction and extra duty. 8. He was advanced to pay grade E-3 on 24 August 1965. 9. His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain the following: a. A DA Form 20 (Enlisted Qualification Record) showing in: * Item 38 (Record of Assignments) – he received "unsatisfactory" conduct and efficiency ratings from 1 May 1964 through 18 May 1965 * Item 42 (Remarks) – he was determined to be ineligible for reenlistment b. A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing he was discharged in pay grade E-3 on 25 October 1965, under the provisions of Army Regulation 635-205 (Discharge and Release for Convenience of the Government of Enlisted Personnel), paragraph 7. His service was characterized as under honorable conditions (general). He was credited with completing 1 year, 10 months and 12 days of net active service and 45 days of time lost. 10. He provided copies of two letters, dated 30 September and 23 December 2014, in which the VA advised him of his entitlement to service-connected compensation for allergic rhinitis and asthma. 11. There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge. 12. Army Regulation 635-205, in effect at the time, set forth the conditions under which enlisted personnel could be discharged or released for the convenience of the Government. Paragraph 7 authorized the separation of enlisted personnel with less than 3 months remaining to serve upon their return to the United States from overseas (overseas returnees). 13. Army Regulation 635-200 (General Provisions of Discharge and Release of Enlisted Personnel), in effect at the time, outlined the factors governing the issuance of a General Discharge Certificate in Section III. Paragraph 10 of the regulation contained the policy regarding the issuance of a general discharge to substandard personnel sub-paragraph b(2) stated a bar to reenlistment would be issued to substandard performers. The regulation also stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. 14. Army Regulation 15-185, paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The applicant's record is void of the complete facts and circumstances pertaining to his discharge. However, the available evidence shows he received three NJPs and a special court-martial conviction for misconduct. He received "unsatisfactory" conduct and efficient ratings between May 1964 and May 1965 and had 45 days of time lost during his period of service. He was also determined to be ineligible for reenlistment. By regulation, in effect at the time, a general discharge was authorized when a Soldier's military record was satisfactory (substandard), but not sufficiently meritorious to warrant an honorable discharge. 2. He provided no evidence or a convincing argument to show his general discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge. His administrative discharge was accomplished in compliance with applicable law and regulation in effect at the time with no indication of procedural error which would have jeopardized his rights. 3. The characterization of his discharge was commensurate with the governing regulation in effect at the time. Without evidence to the contrary, he was properly discharged in accordance with pertinent regulations with due process. 4. With respect to his request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case. 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) AR20150004961 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004961 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1