IN THE CASE OF:	  

	BOARD DATE:	  5 June 2008

	DOCKET NUMBER:  AR20080005715 


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 an upgrade of his discharge. 

2.  The applicant states that his undesirable discharge was unjust and was caused by his previous spouse's refusal to allow him to see his child, despite his continued payment of child support.  He also states that his wish for an upgrade is a matter of pride and that numerous other discharges were upgraded. 

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 was inducted into the Army of the United States on 15 November 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his military service was private/E-2.

3.  The applicant's records show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.  His records do not show any significant acts of valor during his military service.

4.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) reveals multiple occasions of absence without leave (AWOL) as follows: 4 March 1968 through 30 March 1968; 9 April 1968 through 17 April 1968; 27 April 1968 through 30 September 1968; and 15 December 1968 through 18 January 1969.  Additionally, Item 44 shows the applicant was confined from 1 October 1968 through 21 November 1968 and 22 November 1968 through 11 December 1968.

5.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 April 1968 for being AWOL during the period on or about 4 March 1968 through on or about 31 March 1968.  His punishment consisted of a verbal reprimand, 30 days of restriction, 30 days of extra duty, and forfeiture of $30.00 pay per month for two months.

6.  On 22 November 1968, the applicant pled guilty at a Special Court-Martial for one specification of being AWOL during the period on or about 27 April 1968 through on or about 10 October 1968.  The Court sentenced him to confinement at hard labor for 3 months (suspended from 12 December 1968 until 2 February 1969).  The sentence was adjudged on 22 November 1968 and approved on 6 December 1968.

7.  On 15 December 1968, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 19 January 1969.  His records show that he was returned to military control on 7 May 1969.

8.  Headquarters Brigade (Provisional), U.S. Army Training Center and Fort Gordon, Fort Gordon, Georgia, Special Court-Martial Order Number 98, dated 23 May 1969, shows that the unexecuted portion of the applicant's suspended sentence to confinement at hard labor for three months, was vacated and ordered executed. 


9.  On 29 May 1969, the applicant pled guilty at a Special Court-Martial for one specification of being AWOL during the period on or about 15 December 1968 through on or about 7 May 1969.  The Court sentenced him to confinement at hard labor for six months.  The sentence was adjudged on 29 May 1969 and approved on 3 June 1969.

10.  Headquarters Brigade (Provisional), U.S. Army Training Center and Fort Gordon, Fort Gordon, Georgia, Special Court-Martial Order Number 259, dated 23 May 1969, shows that the unexecuted portion of the applicant's suspended sentence to confinement at hard labor for three months, which was vacated and  ordered executed, was suspended effective the date the applicant was released from the Army.  Additionally, this Order shows that the unexecuted portion of the applicant's second sentence to confinement at hard labor for six months was also suspended effective the date the applicant was released from the Army. 

11.  On 10 June 1969, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation 635-212 (Personnel Separations) by reason of unfitness.  The applicant's commander remarked that the applicant had established a pattern of misconduct and that his attitude, conduct, and disciplinary record clearly indicated his elimination due to unfitness was the most appropriate disposition. 

12.  On 10 June 1969, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.

13.  On 10 June 1969, the applicant's intermediate commander recommended approval of the applicant's separation with an Undesirable Discharge Certificate.

14.  On 18 June 1969, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged with a character of service of under other than honorable conditions.  This form further confirms that he completed a total of 4 months and 11 days of creditable active military service and 458 days of lost time.

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statue of limitations.
16.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

18.  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 contends that his discharge should be upgraded.

2.  There is no evidence in the applicant's records that he was undergoing any domestic problems associated with his child or payment of child support.  Furthermore, there is no evidence in the available records and the applicant did not provide substantiating evidence that shows his long and repeated patterns of misconduct and indiscipline were the result of domestic problems.

3.  The applicant's records reveal an extensive history of AWOL as well as a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ and two instances of special courts-martial.

4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  The applicant's discharge was in accordance with applicable regulation and all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  The fact that other Soldiers had their discharges upgraded has no bearing on the applicant's case.  The U.S. Army has never had a policy where one Soldier's discharge upgrade automatically entitles the upgrade of another.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge or an honorable discharge.

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.


								XXX
      _______________________ 
      	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)                                         AR20080005715



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ABCMR Record of Proceedings (cont)                                         AR20080005715



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