IN THE CASE OF:	  

		BOARD DATE:	        14 August 2008

		DOCKET NUMBER:  AR20080006260 


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 he volunteered to serve in Vietnam at the time, but Army officials told him there was no plans to send more Soldiers to Vietnam.  He then elected to get out of the Army and was told he would receive a general discharge that also would be upgraded within 6 months.    

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 he enlisted in the Regular Army for a period of 4 years on 20 October 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest grade he attained during his military service was private (PVT)/E-1.

3.  The applicant’s awards and decorations include the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar.  His records do not show any significant acts of distinction or special recognition during his military service. 

4.  On 2 March 1973, the applicant departed his unit at Fort Hood, Texas, in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 1 April 1973.  He remained in that status until he was apprehended and returned to military control on 4 June 1973.

5.  On 23 July 1973, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-6 of Army Regulation 635-200 (Personnel Separations), for misconduct, fraudulent enlistment.  The specific basis of the recommendation was the applicant’s AWOL.  However, during an investigation of the applicant’s whereabouts, the documents pertaining to fraudulent enlistment were recovered. Prior to his enlistment, the applicant was convicted of a felony and was under a one-year probated sentence.  He knowingly signed his statement for enlistment stating that he had never been on parole nor was under a suspended sentence.

6.  On 25 July 1973, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a Board of Officers and waived personal appearance before a Board of Officers.  He further elected not to submit a statement on his own behalf.  

7.  The applicant further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further acknowledged he understood that if the discharge request was approved, he could be ineligible for many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 
8.  On 30 July 1973, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct, fraudulent enlistment.  The immediate commander further recommended an Undesirable Discharge Certificate.

9.  On 27 August 1973, the applicant’s intermediate commander recommended approval of the applicant’s discharge.  He further added that during an investigation of the applicant’s AWOL by his commander, the documents pertaining to fraudulent enlistment were recovered.  It was determined, at the time, because of certain statements made by the applicant and other extenuating reasons the best course of action would be a discharge. 

10.  On 14 September 1973, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct/fraudulent enlistment and directed the applicant be furnished an Undesirable Discharge Certificate.  On 19 September 1973, the applicant was accordingly discharged.  The DD Form 214 he was issued confirms he was discharged with an undesirable discharge, characterized as under conditions other than honorable.  This form further confirms the applicant completed 7 months and 28 days of creditable active military service and had
94 days of lost time due to AWOL.

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.



13.  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, 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.

14.  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.  The Army does not have a policy where an individual’s discharge is automatically upgraded due to passage of time.  

3.  The evidence of record shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His record of service shows he departed his unit in an AWOL status and that during an investigation of his whereabouts, it was uncovered that he was convicted by a civil court for a felony prior to entering the Army and that he did not disclose this to Army officials upon his enlistment.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, 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.  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.  Therefore, the applicant is not entitled to a general 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)                                         AR20080006260



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ABCMR Record of Proceedings (cont)                                         AR20080006260



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