IN THE CASE OF:	  

		BOARD DATE:	  12 August 2008

		DOCKET NUMBER:  AR20080009930 


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) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he completed his term of service, and that he was told by a judge that his UD would be upgraded to a HD six months after his separation from the Army, but this never happened.

3.  The applicant provides Headquarters, Special Troops, United States Army Training Center and Fort Leonard Wood, Special Court Martial (SPCM) Order Number 1398, dated 21 December 1967 and  SPCM Order Number 727, dated 26 April 1968, 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 was inducted into the Army of the United States (AUS) and entered active duty on 2 August 1967.  He was trained in and awarded military occupational specialty (MOS) 57A (Duty Soldier), and the highest rank he attained while serving on active duty was private/E-1 (PV1).

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows, in Item 41 (Awards and Decorations), that the applicant earned the National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no acts of valor, significant achievement, or service warranting special recognition.   

4.  Item 44 (Time Lost) of the applicant's DA Form 20 shows that during the his active duty tenure, he accrued 223 days of time lost due to being absent without leave (AWOL) or in confinement during the following eleven separate periods:  1 October 1967 (1 day); 2 October 1967 (1 day); 3 - 4 October 1967 (2 days); 
5 - 8 October 1967 (4 days); 9 October - 15 November 1967 (38 days); 
16 - 28 November 1967 (13 days); 1 - 20 December 1967 (20 days); 
3 - 18 January 1968 (16 days); 19 January - 15 March 1968 (57 days); 
24 - 25 March 1968 (2 days); and 26 March - 2 June 1968 (69 days).

5.  On 8 November 1967, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from his unit on 1 October 1967 and from 3 - 8 October 1967.  His punishment for these offenses was a forfeiture of $48.00 per month for 
2 months.

6.  The applicant's record also shows that on 18 December 1967, a SPCM found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from 
16 - 28 November 1967.  The resultant sentence was confinement at hard labor for 2 months (suspended for 2 months) and a forfeiture of $60.00 per month for 
2 months.

7.  The applicant's record also shows that on 28 April 1968, a SPCM found the applicant guilty of violating Articles 121 and 86 of the UCMJ by stealing United States currency valued at about $275.00; and by being AWOL from 
24 - 25 March 1968.  The resultant sentence was confinement at hard labor for 
6 months and a forfeiture of $60.00 per month for 6 months.

8.  On 29 March 1968, the applicant's unit commander advised the applicant that he was recommending him for discharge under the provisions of Army Regulation 635-212, by reason of unfitness, based on his disciplinary history 
(NJP and SPCM convictions) and his pending court-martial.  

9.  On 3 April 1968, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and to counsel.  He further elected not to make a statement in his own behalf.

10.  On 31 May 1968, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212, for unfitness, and directed the applicant receive an UD.  On 9 August 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed a total of 3 months and 1 day of creditable active military service, and that he accrued 223 days of time lost due to AWOL and confinement.

11.  There is no evidence of record to show that the applicant ever submitted a request 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 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an HD or general, under honorable conditions discharge (GD) if warranting by the member's overall record of service; however, an UD was normally considered appropriate for members separating under these provisions. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he believed his UD would be upgraded to an HD 6 months after his discharge from the Army was carefully considered.  However, there is insufficient evidence to support his claim.

2.  The Army does not now have nor has it ever had an automatic policy to upgrade discharges.  Upgrades are granted only after a review by the ADRB or this Board determines the discharge was improper or inequitable.  The evidence of record in this case confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  


3.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his acceptance of NJP, two SPCM convictions, and his accrual of 223 days of time lost due to AWOL and confinement.   As a result, his overall record of service clearly did not support the separation authority issuing an HD or GD at the time, nor does it support an upgrade of his discharge at this late date.  

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)                                         AR20080009930



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ABCMR Record of Proceedings (cont)                                         AR20080009930



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