RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070010620 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. James R. Hastie

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 an upgrade of his discharge. 

2.  The applicant states that he was a good Soldier and loved his county.  During his military service, his previous spouse continually called his immediate commander complaining about lack of financial support.  He further adds that he provided her with an allotment check and free medical care, and kept only $59 per month to himself.  He concludes that at the time of his separation, he waived his right to a hearing, but now realizes that he should not have.  He does not want to die with this type of discharge on his records. 

3.  The applicant did not provide any additional 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's records show that he enlisted in the Regular Air Force for a period of four years on 7 November 1960.  He was discharged prior to completing his enlistment commitment with an Under Honorable Conditions Discharge on 23 April 1962.

3.  He enlisted in the Regular Army on 17 November 1964 for a period of three years.  He completed basic combat and advanced  individual training and was awarded military occupational specialty (MOS) 74A (Data Processing equipment Operator).  The highest grade he attained during his Army enlistment service was private first class/E-3.


4.  The applicant’s record shows that he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).  There are no acts of valor, significant achievement, or service warranting special recognition documented in the record.

5.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that the applicant was reported absent without leave (AWOL) during the period 26 November 1965 through 28 November 1965.

6.  On 15 March 1966, the applicant's immediate commander initiated separation action against the applicant in accordance with Army Regulation 635-206 (Personnel Separations) for concealment of prior service in the U.S. Air Force.  The immediate commander commented that the applicant had also been counseled on numerous occasions regarding his moral responsibility to his spouse at the time and that he-the applicant-readily admitted that his discharge from the Air Force was directly caused by his indebtedness.  The immediate commander added that the applicant was mentally capable of performing his military duties and maintaining a good marital status without bringing administrative burdens to his unit, but made no attempt to maintaining his financial affairs in good order.  The immediate commander concluded that the applicant lacked leadership potential and recommended an Undesirable Discharge Certificate.

7.  The immediate commander's memorandum, dated 15 March 1966, initiating the separation action, listed eight enclosures, among which were three instances of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), and a letter from the applicant's spouse.  However, these enclosures are not available for review with this case.

8.  On 22 June 1966, the separation authority approved the applicant's discharge for "clear and conclusive fraudulent entry."  He directed the applicant's reduction to the lowest grade and discharge with an Undesirable Discharge Certificate.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued confirms he was discharged on 29 June 1966 in accordance with section V of Army Regulation 635-206 with an Under Other Than Honorable Conditions Discharge.  This form also confirms that he completed 3 years and 27 days of creditable military service and 3 days of lost time.



9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

10  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  The regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, or an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.

DISCUSSION AND CONCLUSIONS:

1.  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.  The type of discharge given was appropriate considering his concealment of prior enlisted service and his disciplinary record during that period of service.

2.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition, and as a result, it is clear his discharge accurately reflects his overall record of undistinguished service.  Therefore, in view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __ecp___  __jrh___  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.




							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070010620
SUFFIX

RECON

DATE BOARDED
20071204
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19660629
DISCHARGE AUTHORITY
AR 635-206
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.