RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20080002223


	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 that he was told his discharge would be upgraded to a general discharge. 

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge).

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 enlisted on 12 December 1966 for a period of 2 years.  He successfully completed basic combat training.

3.  On 13 April 1967, nonjudicial punishment was imposed against the applicant for leaving his appointed place of duty without proper authority.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  On 24 April 1967, in accordance with his pleas, the applicant was convicted by a special court-martial of failing to obey a lawful order and breaking restriction. He was sentenced to be confined at hard labor for 3 months and to forfeit $32.00 pay per month for 3 months.  On 25 April 1967, the convening authority approved the sentence.  On 2 May 1967, the convening authority suspended the unexecuted portion of the sentence to confinement at hard labor for 6 months.  On 7 June 1967, the suspended portion of the sentence was vacated.  

5.  On 19 June 1967, in accordance with his pleas, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 6 May 1967 to 3 June 1967 and failing to obey a lawful order.  He was sentenced to be confined at hard labor for 6 months and to forfeit $60.00 pay per month for 6 months.  On 22 June 1967, the convening authority approved the sentence.

6.  On 21 August 1967, contrary to his pleas, the applicant was convicted by a special court-martial of being AWOL from 26 July 1967 to 29 July 1967 and escaping from confinement.  He was sentenced to be confined at hard labor for 6 months and to forfeit $64.00 pay per month for 6 months.  On 28 August 1967, the convening authority approved the sentence.

7.  On 19 January 1968, the unexecuted portions of the applicant’s sentences to confinement (adjudged on 24 April 1967 and 19 June 1967) were remitted effective 2 February 1968.

8.  On 7 May 1968, in accordance with his pleas, the applicant was convicted by a special court-martial of two specifications of being AWOL (from 17 February 1968 to 31 March 1968 and from 7 April 1968 to 15 April 1968).  He was sentenced to be confined at hard labor for 6 months.  On 14 May 1968, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 4 months.

9.  On 22 May 1968, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.

10.  On 22 May 1968, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf.

11.  On 23 May 1968, the unexecuted portion of the applicant’s sentence to confinement (adjudged on 7 May 1968) was ordered to be remitted effective the date of the applicant’s discharge.

12.  On 28 May 1968, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.

13.  On 6 June 1968, the applicant was discharged 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 4 months and 24 days of creditable active service with 391 days lost due to AWOL and confinement.  

14.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

15.  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.

16.  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.

17.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

2.  The applicant’s record of service included one nonjudicial punishment, four special court-martial convictions, and 391 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
 
4.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

XX _____  __XX___  _XX_____  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.



      ____XXX         ____
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080002223


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508