IN THE CASE OF: BOARD DATE: 25 March 2010 DOCKET NUMBER: AR20090015087 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, upgrade of his under other than honorable conditions discharge to general under honorable conditions. 2. The applicant states, in effect, he has led a good life since his discharge, has not had any legal problems, has been employed by the local school system for 30 years, has coached athletic teams, and has been a business owner for 30 years. 3. The applicant provides the following: * a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer of Discharge) * three letters of support * an Involvements Report from the Coshocton County Sheriff's Office * self-authored statement 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 was inducted into the Army of the United States and entered active duty on 10 February 1966. He was trained in and awarded military occupational specialty 94B (Cook). 3. The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost) he was absent without leave (AWOL) and confined during multiple periods with a total of 607 days of time lost. A DA Form 20B (Insert Sheet to DA Form 20, Record of Court-Martial Conviction) shows that he was convicted by a special court-martial of being AWOL twice during the periods 1 June 1966 to 21 June 1966 and 22 June 1966 to 5 April 1967. He was convicted again by a special court-martial for escape from lawful confinement on 29 January 1968 and for AWOL during the period 29 January 1968 to 14 January 1969. The special court-martial orders executing the sentences for his convictions show that he pled guilty to all charges. 4. On 5 February 1969, the applicant underwent a psychiatric evaluation. This evaluation indicated that the applicant was mentally able to distinguish right from wrong and adhere to the right. The evaluation further showed that the applicant had no disqualifying mental or physical disease or defect sufficient to warrant discharge through medical channels. 5. On 14 March 1969, the applicant's commander advised him that he was being recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations) by reason of unfitness. 6. The applicant consulted with legal counsel and, after being advised of the basis for the contemplated separation, its effects and the rights available to him, waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel. He also chose not to submit a statement on his own behalf. 7. On 25 June 1969, the separation authority directed the applicant’s separation for unfitness with an undesirable discharge. On 2 July 1969, he was discharged accordingly. He completed a total of 4 months and 10 days of creditable active military service and accrued a total of 607 days of time lost due to AWOL and confinement. 8. There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 9. The applicant provides the following: a. two letters of reference which commend him as an employee and highlight his volunteer work in the community, b. an Involvements Report from the Coshocton County Sheriff's Office, and c. his own statement that he disagreed with the Vietnam Conflict and subsequent to his discharge has been a good husband, father, and grandfather, and has served his community well. 10. Army Regulation 635-212, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness. The regulation stated that individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined that an individual's military record was characterized, in pertinent part, by frequent incidents of a discreditable nature with civil or military authorities. 11. Army Regulation 635-200 (Personnel Separations - 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 12. 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. The applicant's request for upgrade of his discharge was carefully considered and not supported by the evidence in this case. 2. The applicant’s separation for unfitness was proper and equitable and in accordance with the regulations in effect at the time. 3. Based on his record of indiscipline, which includes two convictions by special court-martial and 607 days of time lost due to AWOL and confinement, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to either 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) AR20090015087 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090015087 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1