RECORD OF PROCEEDINGS


	IN THE CASE OF:	  

	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20080003362 


	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 his special court-martial was unjustified and should have been a summary court-martial because he turned himself in after being absent without leave (AWOL).  Since his discharge from the military he has had no further infractions over the years. 

3.  The applicant provides no additional documentation in support of this case.

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 in the Regular Army on 10 August 1960 for a 3-year term of enlistment.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 640.00 (Light Vehicle Driver).  

3.  On 6 May 1961, the applicant was convicted, contrary to his pleas, by a special court-martial for wrongfully appropriating the property of an Airman.  His sentence consisted of restriction to the company area for two months and forfeiture of $50.00 per month for three months.

4.  On 3 August 1962, the applicant was convicted, pursuant to his pleas, by a special court-martial for being AWOL for the period 4 June 1962 through 16 July 1962.  His sentence consisted of confinement at hard labor for six months, forfeiture of $55.00 per month for six months, and reduction to the rank of Private/E-1.

5.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 show that he was separated on 8 October 1962 under the provisions of Army Regulation 635-208 with a characterization of service of under other than honorable conditions.  The applicant completed 1 year, 9 months, and 25 days of creditable active service with 126 days of lost time due to AWOL and confinement.

6.  The Manual for Courts-Martial provides the maximum punishment for violations of Article 86 (AWOL more than 30 days): 1) Discharge: dishonorable discharge, bad conduct discharge; 2) Confinement: 1 year; and 3) Forfeiture: Total.

7.  Army Regulation 635-208, in effect at that time, set forth the policy for administrative separation for unfitness (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  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.  At the time, an undesirable discharge was normally issued.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  The applicant contends that his special court-martial was unjustified and should have been a summary court-martial because he turned himself in after being AWOL.  Evidence of record shows the applicant was AWOL for more than 30 days.  The applicant stated that he turned himself in.  However, the type of court-martial was based on the seriousness of the offense which was at the discretion of the court-martial authority.  It appears that at that time the court-martial authority determined the charge against the applicant warranted a special court-martial.  The applicant has not shown error, injustice, or inequity for the relief he requests.

2.  Evidence of record shows that the applicant received two special courts-martial.  He had completed 1 year, 9 months, and 25 of creditable active service before his separation with a total of 126 lost days due to AWOL and confinement. Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general discharge.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xxx   _  __xxx __  _ _xxx___   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.




      ___ ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080003362


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