IN THE CASE OF:	  

		BOARD DATE:	  	  16 October 2008

		DOCKET NUMBER:  AR20080009764 


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 discharge be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, that he was discharged from military service
43 years ago.  He as been a model citizen and has never had any problems with the law.  He has been a family man and he has raised five children.  He is presently retired and will be applying for a pension from the Veterans’ Administration (sic). 

3.  The applicant provides no additional documents 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 record shows that he enlisted in the Regular Army and entered active duty on 30 March 1963, and was trained in and awarded military occupational specialty (MOS) 631.00 (Wheel Mechanic).    

3.  The applicant’s Service Record (DA Form 24) shows he was promoted to private first class (PFC) on 16 December 1963, and that this is the highest rank he held while serving on active duty.  It also shows he was reduced to private/E-1 (PV1) on 28 August 1964.    

4.  The applicant's disciplinary record includes two separate convictions by Special Court-Martial (SPCM).

5.  On 27 August 1964, a SPCM found the applicant guilty of two specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) from 17 March 1964 to 5 April 1964 and from 
26 April 1964 to 18 June 1964.  The resultant sentence was confinement at hard labor for 4 months, a forfeiture of $55.00 per month for 2 months (suspended for 2 months) and a reduction to pay grade E-2.  

6.  On 18 February 1965, a SPCM found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from 8 November 1964 through 14 January 1965.  The resultant sentence was confinement at hard labor for 6 months and a forfeiture of $55.00 pay per month for 6 months.  

7.  The facts and circumstances pertaining to the applicant's discharge are not on file.  The Armed Forces of The United States Report of Transfer or Discharge, (DD Form 214), shows that the applicant was discharged on 29 March 1965, under the provisions of Army Regulation 635-208, for unfitness, and he was issued an undesirable discharge. 

8. The DD Form 214 issued to the applicant on 29 March 1965, also shows he completed a total of 1 year and 1 month of creditable active military service and that he accrued 334 days of time lost due to being AWOL and in confinement.  

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

10.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found unfit or unsuitable for further military service. The regulation provided, in pertinent part, that members who displayed undesirable habits and traits were subject to separation for unfitness.  While the separation authority could grant a general, under honorable conditions discharge (GD) or honorable discharge (HD), if warranted by the member's overall record of service, the issue of an UD was normally considered appropriate for members separated under these provisions. 

11.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be without merit.  The applicant’s military record is voided of the discharge proceedings.  However, the evidence of record shows the applicant had an extensive disciplinary history which included two separate SPCM convictions for going AWOL for more than 173 days.  Therefore, given the circumstances in this case and his overall undistinguished record of service, there is insufficient evidence to support his request at this time.  

2.  The applicant’s good post service conduct is admirable; however, this factor alone is not sufficiently mitigating to warrant an upgrade of his discharge.   

3.  The applicant’s record documents no acts of valor, significant achievement or service warranting special recognition and as a result his discharge accurately reflects his overall record of service.  His overall record of service and extensive disciplinary history did not support the issuance of a GD or HD at the time of his discharge, and does not support an upgrade at this time.  

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)                                         AR20080009764



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ABCMR Record of Proceedings (cont)                                         AR20080009764



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