RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20080000719 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he went absent without leave (AWOL) due to family problems.  He contends that his father was deceased at the time, that his mother was ill (spinal cancer) with no income, and that he left the military to take care of his mother.  He contends that he was young and dumb and that he felt stuck between his desire to be in the military and the demands his family was putting on him. 

3.  The applicant provides no additional 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 was born on 8 April 1949.  He was inducted on 25 February 1969.  

3.  On 11 June 1969, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 18 March 1969 to 19 May 1969.  He was sentenced to be confined at hard labor for 4 months.  On 18 June 1969, the convening authority approved the sentence.

4.  On 11 July 1969, in accordance with his pleas, the applicant was convicted by a special court-martial of being AWOL from 17 June 1969 to 19 June 1969 and escaping from confinement.  He was sentenced to be confined at hard labor for 
6 months and to forfeit $76 pay per month for 6 months.  On 15 July 1969, the convening authority approved the sentence.

5.  On 17 December 1969, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 16 July 1969 to 
10 November 1969.  He was sentenced to be confined at hard labor for 6 months and to forfeit $75 pay per month for 2 months.  On 18 December 1969, the convening authority approved the sentence.  On 9 February 1970, the unexecuted portion of the sentence to confinement at hard labor for 6 months was suspended for 6 months.

6.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant’s DD Form 214 (Report of Transfer or Discharge) shows that he was discharged on 4 March 1970 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 1 month and 17 days of creditable active service with 329 days lost due to AWOL and confinement.

7.  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.

8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  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.

9.  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.  Age is not a sufficiently mitigating factor.  The applicant was almost 20 years of age when he was inducted.

2.  There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures prior to going AWOL.  

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JM_____  __CD___  ___QS___  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.



      _                  _JM________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000719


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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