IN THE CASE OF:	 

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080009084 


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, in effect, that his undesirable discharge (UD), characterized as under other than honorable conditions (UOTHC), be upgraded to a general discharge or medical discharge.

2.  The applicant states, in effect, that he was hospitalized at the time because of surgery on his appendix.  He was put on leave of absence and was unable to perform his duties due to a medical condition.  He was picked up for being AWOL (absence without leave) and given a court-martial.  He adds that he is on Social Security disability and now feels that he should be entitled to medication through the VA (Department of Veterans Affairs).

3.  The applicant provides no additional documentation in support of his request. 

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 record shows he entered active duty on 30 November 1965. 
He was scheduled for training in military occupation specialty (MOS), 11B, Light Weapons Infantryman.  

3.  The applicant departed AWOL on 19 March 1966 while attending advance individual training (AIT) at Fort Dix, New Jersey, and returned from being AWOL on 23 March 1966. 

4.  On 24 March 1966, nonjudicial punishment was imposed against the applicant under the provisions of Article 15, of the Uniform Code of Military Justice, for the above period of AWOL.  His punishment consisted of a forfeiture of pay and 14 days of extra duty.

5.  The applicant was convicted by a special court-martial on 29 October 1966 of being AWOL from on or about 13 June to 12 August 1966 and from 6 September to 25 September 1966.  His sentence consisted of a reduction to pay grade E-1, a forfeiture $20.00 pay per month for 6 months, and confinement at hard labor for 6 months.

6.  On 28 November 1966, the sentence was ordered duly executed, but that portion of the sentence adjudging confinement at hard labor in excess of 3 months was suspended for 6 months, unless the suspension was sooner vacated.  Fort Leonard Wood, Missouri, was designated as his place of confinement.

7.  The applicant was convicted by a special court-martial on 21 July 1967 of being AWOL from on or about 4 April to 6 July 1967.  His sentence consisted of confinement at hard labor for 3 months and a forfeiture of pay for 3 months.

8.  All of the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant’s DD Form 214 shows that on 18 August 1967, he was discharged in pay grade E-1 under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature with civil or military authorities.  He was furnished an undesirable discharge.  He had completed a total of 10 months and 26 days of creditable service and he had 297 days of lost time due to being AWOL and in confinement.  



9.  On 15 January 1982, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.

10.  The applicant's medical records are unavailable for review.  His records contains no evidence to show that he was hospitalized because of surgery on his appendix or to show that he was put on leave of absence and was diagnosed with a medical condition that prevented him from performing his duties.

11.  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.

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.

13.  Army Regulation 635-200, paragraph 3-7a, also provides that an honorable discharge is a separation with honor.  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 inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review. 

2.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

3.  The applicant’s record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason for the applicant's discharge and the characterization of his service.  Government regularity in the discharge process is presumed. 

4.  The available evidence does not support that the applicant had a medical condition that prevented him from performing his duties or that it contributed to him being AWOL.

5.  There is no evidence, and the applicant has provided none, to show his chain of command approved him for a leave of absence or to show that he sought assistance from his chain of command before he went AWOL.

6.  The Department of Veterans Affairs (VA) determines qualifications for benefits administered by that agency.  

7.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD, characterized as UOTHC, to a general discharge or a medical discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

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)                                         AR20080009084



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ABCMR Record of Proceedings (cont)                                         AR20080009084



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