RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 October 2007
	DOCKET NUMBER:  AR20070006702 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. John N. Slone

Chairperson

Mr. John T. Meixell

Member

Mr. David W. Tucker

Member

	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, in effect, that his undesirable discharge be upgraded to a general discharge. 

2.  The applicant states, in effect, that he was not informed he would not be able to correct his discharge.  He states that he could earn a discharge change by serving.  

3.  The applicant provides a copy of a letter submitted by his Member of Congress, dated 27 April 2007, 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's military service records show that he entered active duty on 26 July 1962.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty (MOS) 321.10 (Lineman).

3.  On 3 May 1963, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for the period 12 April 1963 to 15 April 1963. 

4.  A DD Form 458 (Charge Sheet) shows that the applicant was charged with one specification of AWOL for the period 15 July 1963 to 25 September 1963.

5.  On 21 December 1963, the applicant was convicted by a Special Court-Martial for two specifications of AWOL for the periods 14-19 October 1963 and 20 October to 21 November 1963.  His sentence consisted of 6 months confinement and forfeiture of $55.00 per month for 6 months.

6.  On 18 December 1963, the applicant's commander recommended that the applicant be discharged from the Armed Forces with an undesirable discharge under the provisions of Army Regulation 635-208 (Enlisted Separation) in the best interest of the service.  The commander stated that the applicant said if he was reassigned he would go AWOL again and continue to go AWOL until he was eliminated from the service.  

7.  On 18 December 1963, the applicant was informed by his commander of his intent to recommend a discharge for unfitness, his right to counsel, his right to an administrative hearing by a board of officers, his right to submit a statement in his own behalf and his right to be represented by counsel at a hearing.  The commander also explained the applicant's rights in conjunction with his recommendation and the effect of waiving those rights.

8.  The applicant acknowledged that he understood if his discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  The applicant signed the statement and was furnished a copy.

9.  On 20 January 1964, the separation authority approved the commander's recommendation and directed that the applicant be issued an Undesirable Discharge Certificate.  He was reduced in rank from private E-2 to private E-1.  On 27 January 1964, the applicant was discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 1 year and 5 days of creditable active military service.  He had accrued 181 days of time lost.

10.  The applicant applied to the Army Discharge Review Board (ADRB) on 
23 April 1981.  On 22 June 1982, the ADRB reviewed the applicant's record and determined that his discharge was proper and equitable and denied relief.

11.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness (misconduct).  The regulation provided, in 
pertinent part, for the separation of personnel where there was evidence of frequent incidents of a discreditable nature with civil or military authorities, an established pattern of shirking and showing dishonorable failure to pay just debt. 
Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested that his undesirable discharge be upgraded to a general discharge.

2.  Evidence shows the applicant was AWOL during the periods 12 April 1963 to 15 April 1963; 15 July 1963 to 25 September 1963; 14-19 October 1963; and  
20 October to 21 November 1963.  He was convicted by one court-martial and he accepted NJP.  As such, an undesirable discharge was equitable and proper.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of repeated misconduct renders his service unsatisfactory. Therefore, he is not entitled to either an honorable or a general discharge.

4.  His statement that he was not informed he would not be able to correct his discharge is noted; however, the evidence shows that the applicant received the proper briefing and counseling from his command prior to his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____jns__  ___dwt__  ___jtm___  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.



__________Mr. John N. Slone_____
          CHAIRPERSON

INDEX

CASE ID
AR20070006702
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071018
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY,
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.