RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060011127 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.




	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Undesirable Discharge, characterized as under other than honorable conditions, be upgraded. 

2.  The applicant states, in effect, that he went absent without leave (AWOL) because his mother was having heart trouble and his father lost his job.  He went home to help his parents, and the military police knew where to find him.  He contends that no one in his chain of command offered any assistance or were even curious to know why he "was going over the hill."  After his discharge, he went home to take care of his parents and married a terrific woman who helped him.  His mother died 9 years after he left the service.  He now knows that he could have requested a humanitarian discharge (sic), but he was young and dumb, and took care of things the best he knew how.  He now has failing health and was forced to retire.  He cannot get medical coverage from the Department of Veterans Affairs (DVA) because of his discharge.  He wants the Board to consider that he worked for over 18 years at his church and that he was not a bad kid, he just needed to take care of his family. 

3.  The applicant provides three letters of support from friends.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 3 July 1969, the date of his discharge from the Army.  The application submitted in this case is dated 25 July 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 24 July 1967, the applicant enlisted in the Regular Army for a period of three years.  The applicant was 20 years old at the time of his enlistment.  The applicant completed basic combat training.  The applicant went AWOL for the first time while in advanced individual training at Fort Gordon, Georgia.

4.  The applicant's record shows he was a private/E-1 and received the National Defense Service Medal. 

5.  The applicant had five periods of AWOL for a total of 370 days.  He was convicted by three special courts-martial and amassed 202 days of lost time due to military confinement.

6.  The applicant's discharge proceedings are not contained in the official record. 
However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was separated under the provisions of Army Regulation 635-212, by reason of unfitness.  Although he was given an undesirable discharge, his service was characterized as under other than honorable conditions on his DD Form 214. 

7.  The applicant provided a letter of support from the Director of Fellowship Ministries indicating that the applicant was a valued employee who worked with the pre-school staff.  He was an asset, his flexibility provided the church with the necessary base to meet the needs of a variety of groups utilizing the building, and he communicated well with all pre-school participants.

8.  The applicant provided a reference letter from a friend who indicates that he is an outstanding citizen, a good provider, has always worked, and is a wonderful father and grandfather.  He is involved in his church community and volunteers for a number of different functions.

9.  The applicant submitted a letter from a colleague who indicates the applicant is easy to work with, that he is willing to do the little things to make life easier for others.  When extra custodial help was needed, he would volunteer to help with evening meetings and on weekends.  

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An undesirable discharge was normally considered appropriate for members separating under these provisions. 

11.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.
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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's personnel record shows he had 572 days of lost time due to AWOL and military confinement.  He was convicted by three special courts-martial for AWOL.  Given the applicant's continued misconduct, the command appropriately determined the applicant did not demonstrate the potential for further military service.

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge and reason for separation were appropriate considering all the facts of the case.

3.  The applicant was 20 years old at the time of his enlistment.  The Board noted that the applicant met entrance qualification standards to include age.  The Board further found no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The Board noted the applicant's contentions regarding assistance with his personal problems; however, there was no evidence in the official record to show the applicant advised his chain of command that he had family problems.  Further, the Board determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  The Board also noted that the applicant states that his mother died 9 years after he was discharged from the Army.



5.  Although the applicant submitted evidence attesting to his excellent post-service conduct and accomplishments in his community, these accomplishments are insufficiently mitigating to overcome the serious misconduct in the applicant's record.  The Board also does not have a policy of changing the characterization of service based upon an applicant's desire to obtain DVA benefits.

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, he is not entitled to a general or honorable discharge.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 July 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 July 1972.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __pms___  __jlp___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.








2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.



							William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011127
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19690703
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.5000
2.

3.

4.

5.

6.