IN THE CASE OF:	  

		BOARD DATE:	       29 July 2008

		DOCKET NUMBER:  AR20080006129 


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 discharge be upgraded to general under honorable conditions. 

2.  The applicant states, in effect, that he reenlisted after serving 3 years, including 2 years in Southeast Asia.  After he reenlisted his father passed away and, since his mother had died 6 years earlier, he found it necessary to stay home to care for his seven younger siblings.  Family hardship and mental instability kept him from returning to his unit. 

3.  The applicant provides copies of his two DD Forms 214 (Armed Forces of the United States 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 5 June 1967 at the age of 19 years and 4 months.  His enlistment documents list his mother as deceased and name three brothers and two sisters, all living at his home address.

3.  He completed training as a clerk typist and was stationed in Thailand with a military police battalion.  He voluntarily extended his 1-year tour of duty by 
6 months.    

4. The applicant was advanced to pay grade E-4 on 17 January 1968 and reenlisted on 4 October 1968.  

5.  A special court-martial convicted him of being absent without leave (AWOL) from 16 April to 30 June 1969 and from 9 October 1969 to 25 January 1970.  He was sentenced to confinement at hard labor for 95 days.  He was released from confinement on 5 May 1970 and was AWOL again on 20 May 1970.  He was AWOL from 20 May to 23 June 1970, 15 September to 11 December 1970, 
9 January to 18 February 1971 and from 3 March to 20 June 1971.     

6.  On 16 July 1971 he was recommended for separation for unfitness due to frequent incidents of a discreditable nature with military and/or civilian authorities. He consulted with counsel and waived consideration by and personal appearance at a board of officers.  He submitted a personal statement to the effect that he felt that his previous "good time" and his personal problems [no details provided] warranted a general discharge.

7.  The applicant also acknowledged that he could expect to encounter substantial prejudice because of a less than honorable discharge and that receipt of a discharge under conditions other than honorable would result in the loss of some or all veteran's benefits under Federal and State laws.

8.  The separation authority approved the recommendation, waived any rehabilitation requirements and directed that an Undesirable Discharge Certificate be issued.  


9.  On 23 August 1971 the applicant was separated with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature.  He had completed 2 years, 
7 months, and 7 days total creditable service and he had 581 days of lost time due to being AWOL and in confinement.

10.  Army Regulation 635-212 (Personnel Separations), 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.  There is no indication that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge. 

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 type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  Considering that there is no available evidence detailing the nature and extent of the applicant's family problems, what actions he took to deal with them or any help he might have sought from the Army; this issue does nothing to demonstrate an injustice in the discharge.     

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  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.




      _______ _  X _______   ___
               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)                                         AR20080006129



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ABCMR Record of Proceedings (cont)                                         AR20080006129



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