IN THE CASE OF:	  

		BOARD DATE:	        29 July 2008

		DOCKET NUMBER:  AR20080005821 


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 to honorable.

2.  The applicant states, in effect, that when he came back from Vietnam he had family problems.

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 27 June 1969 for a period of 3 years.  He successfully completed basic training and advanced individual training in military occupational specialty 13A (field artillery basic).  

3.  Between 8 December 1970 and 27 August 1971, the applicant was counseled on four occasions for various infractions which included lack of military courtesy, using obscene remarks toward superiors, a summary court-martial, and being absent without leave (AWOL).

4.  On 23 June 1971, in accordance with his plea, the applicant was convicted by a summary court-martial of being AWOL from 23 May 1971 to 7 June 1971.  He was sentenced to forfeit $100.00 pay per month for 1 month and restriction for 
60 days.  On 23 June 1971, the convening authority approved the sentence.  

5.  On 8 September 1971, in accordance with his plea, the applicant was convicted by a summary court-martial of being AWOL from 13 August 1971       to 27 August 1971.  He was sentenced to be reduced to E-1, to forfeit $75.00 pay per month for 1 month, and to be confined at hard labor for 30 days.  On             8 September 1971, the convening authority approved the sentence.   

6.  On 4 October 1971, 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.  His unit commander cited that the applicant was a substandard Soldier, that he had been repeatedly AWOL, and that he had shown disrespect and a complete lack of military courtesy to his superiors as evidenced by his counseling records.   

7.  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. 

8.  On 29 October 1971, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.      

9.  On 9 November 1971, 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 2 years, 3 months, and 6 days of creditable active service with 
37 days lost due to AWOL and confinement.  

10.  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. 

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  

13.  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.  Family problems are not normally grounds for upgrading a discharge.  There is no evidence of record to show 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.  

2.  The applicant’s record of service included two summary court-martial convictions and 37 days of lost time.  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 honorable or 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 therefore 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.



      ________xxxx__________
               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)                                         AR20080005821



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ABCMR Record of Proceedings (cont)                                         AR20080005821



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