IN THE CASE OF: BOARD DATE: 3 November 2009 DOCKET NUMBER: AR20090009296 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 be upgraded. 2. The applicant states that he is 58 years old and has multiple illnesses, that he has worked for military establishments for approximately 15 of the last 40 years since his discharge, and that he just wants to join the American Legion. He does not say his discharge is wrong, but is asking if there is any way to change it. 3. The applicant provides no documentary evidence in support of his application. 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 10 December 1969 for a period of 3 years. 3. On 30 January 1970, while in basic combat training, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order. His punishment consisted of a forfeiture of pay and restriction. 4. On 14 March 1970, while in basic combat training, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 2 February 1970 to 10 February 1970. His punishment consisted of a forfeiture of pay, restriction, and extra duty. 5. The applicant completed basic combat training and advanced individual training in military occupational specialty 64A (light vehicle driver). 6. On 2  January 1971, the applicant was convicted by a special court-martial in accordance with his plea of being AWOL from 7 August 1970 to 14 November 1970. He was sentenced to perform hard labor without confinement for 30 days and to forfeit $20.00 of pay per month for 2 months. On 25 February 1971, the convening authority approved the sentence. 7. On 5 February 1971, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. 8. On 8 February 1971, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel. He also elected not to submit a statement on his own behalf. 9. On 9 February 1971, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. His unit commander cited that the applicant had shown a propensity for absenting himself without leave despite attempts to rehabilitate or develop him as a satisfactory Soldier. 10. On 27 February 1971, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge. 11. On 17 March 1971, the applicant was separated with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. He had served 11 months and 1 day of creditable active service with 137 days lost due to AWOL and confinement. 12. There is no indication in the available records that the applicant applied to the Army Discharge Review Board (ADRB) for a discharge upgrade within its 15-year statute of limitations. 13. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate. 14. Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 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. 15. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. A discharge is not upgraded for the purpose of obtaining membership in the American Legion. 2. The applicant’s record of service included two incidents of nonjudicial punishment, one special court-martial conviction, and 137 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge. 3. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so. 4. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the 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) AR20090009296 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090009296 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1