IN THE CASE OF:	  

		BOARD DATE:	        21 AUGUST 2008

		DOCKET NUMBER:  AR20080009514 


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 be upgraded to a general discharge. 

2.  The applicant states, in effect, that he joined the Army to go to Vietnam and was sent to Fort McClellan, Alabama for his basic training.  He goes on to state that all of the normal training bases were full so a temporary unit was established and improperly trained staff assigned to conduct what he calls inadequate training.  He goes on to state that he completed his basic training and was transferred to Fort Rucker, Alabama for his advanced individual training and was assigned there for his permanent duty assignment.  He continues by stating that he repeatedly requested assignment to Vietnam to no avail and eventually became discouraged and fell in with a group of Soldiers and began to drink heavily.  He further states that during one of his drinking bouts he forged a check and was court-martialed.  He also states that he was told he was going to be discharged from the service with a general discharge and it was not until after his discharge that he realized that he had been discharged with an undesirable discharge with service characterized as under conditions other than honorable. 

3.  The applicant provides a two-page self-authored statement explaining 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 enlisted in San Antonio, Texas on 30 October 1966 for a period of 3 years and training as an engineer heavy equipment operations and maintenance.  He was transferred to Fort McClellan, Alabama to undergo his basic training.  

3.  He completed his basic training and was transferred to Fort Rucker, Alabama for training as an engineer equipment assistant.    

4.  On 20 April 1967, nonjudicial punishment (NJP) was imposed against him for speeding, operating a motorcycle without a driver’s license and crash helmet, and for driving under the influence of alcohol.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.    

5.  On 30 June 1967, the applicant was arrested by the military police for attempting to steal gasoline from a military vehicle.  He was released to his unit commander, who allowed the applicant to go to his former unit to be paid and was advised to return to the orderly room immediately thereafter.  Instead, he went absent without leave (AWOL) and on 3 July 1967, the commander was advised that the applicant had been arrested in West Panama City Beach for investigation of car theft.  The applicant was returned to military control on 4 July 1967 and on 7 July 1967, charges were preferred against him.   

6.  The applicant went AWOL on 10 July 1967 and remained absent until he was returned to military control on 1 August 1967.  He again went AWOL on 28 August 1967 and remained absent until 30 August 1967.  


7.  On 11 September 1967, NJP was imposed against him for attempting to steal gasoline from the United States Government.  His punishment consisted of a forfeiture of pay.

8.  On 2 October 1967, he was convicted by a special court-martial of being AWOL from 30 June 1967 to 4 July 1967, 10 July 1967 to 1 August 1967, and
28 August 1967 to 30 August 1967; and for two specifications of breaking restriction.  He was sentenced to a forfeiture of $70.00 pay per month for
6 months.

9.  On 13 March 1968, he was convicted by a special court-martial of two specifications of forging and cashing checks at the Post Exchange and of being AWOL from 1 March 1968 to 4 March 1968.  He was sentenced to confinement at hard labor for 5 months, a forfeiture of pay, and reduction to the pay grade of E-1.

10.  On 3 June 1968, the applicant’s commander initiated action to discharge him from the service under the provisions of Army Regulation 635-212 for unfitness due to his repeated involvement in incidents of a discreditable nature with military and civilian authorities. 

11.  After consulting with counsel, the applicant waived all of his rights and declined the opportunity to submit a statement in his own behalf.   He also acknowledged that he understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he would be ineligible for many or all benefits as a veteran under both Federal and State Laws and that he could expect to encounter substantial prejudice in civilian life. 

12.  On 18 June 1968, the appropriate authority (a major general) approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

13.  Accordingly, he was discharged with an undesirable discharge on 27 June 1968, under the provisions of Army Regulation 635-212, for unfitness, due to his frequent involvement in incidents of a discreditable nature with civil/military authorities.  He had served 1 year, 7 months, and 27 days of total active service and had approximately 159 days of lost time due to AWOL and confinement.

14.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil and/or military authorities, established pattern for shirking, established pattern of failure to pay just debts, drug addiction, failure to support dependents and lewd or indecent acts were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.    

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.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been noted by the Board; however, they are also not sufficiently mitigating to warrant relief when compared to his misconduct and his otherwise undistinguished record of service.

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

__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)                                         AR20080009514



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009514



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1