IN THE CASE OF:	  

	BOARD DATE:	  10 June 2008

	DOCKET NUMBER:  AR20080004958 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be upgraded.

2.  The applicant states, in effect, that he wants his discharge upgraded to get health benefits.  

3.  The applicant provides a letter from his daughter; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 13 April 1967; his DD Form 214 for the period ending 13 January 1966; and two letters from the Department of Veterans Affairs, Detroit, Michigan.  

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 inducted into the Army of the United States on 10 January 1965.  He was honorably discharged on 13 January 1966 for enlistment in the Regular Army.  

3.  The applicant enlisted in the Regular Army on 14 January 1966 for a period of three years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 63H (auto repairman).  He was advanced to private first class on 14 July 1966.

4.  On 1 February 1967, the applicant was convicted, pursuant to his plea, by a special court-martial of being absent without leave (AWOL) from 7 November 1966 to 6 January 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $64.00 pay for 6 months.  

5.  On 29 March 1967, the applicant underwent a neuropsychiatric examination.  He was diagnosed as having an immature personality.  The psychiatrist recommended that the applicant be separated from the service.  

6.  On an unknown date, the company commander notified the applicant of pending separation action under the provisions of Army Regulation 635-212 based on unfitness.  He was advised of his rights.  The applicant declined consultation with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and did not submit statements in his own behalf.  

7.  On 6 April 1967, the separation authority approved the separation action and waived rehabilitation requirements with issuance of an Undesirable Discharge Certificate.

8.  On 13 April 1967, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness - frequent incidents of a discreditable nature with civil or military authorities.  He completed 9 months and 24 days of active military service during the period under review.  He had 131 days of lost time due to AWOL and confinement.  

9.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

10.  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.
11.  Army Regulation 635-200 governs the separation of enlisted personnel.  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

12.  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.  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.

2.  The applicant’s record of service shows he was convicted by a special 
court-martial for being AWOL.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgrade to an honorable or general discharge.

3.  There is no evidence of record which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

xx______  xx______ 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.




      xxxxxxx______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080004958





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ABCMR Record of Proceedings (cont)                                         AR20080004958



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