IN THE CASE OF:	  

	BOARD DATE:	  24 July 2008

	DOCKET NUMBER:  AR20080010033 


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 honorable.   

2.  The applicant states that he received a letter in the early 1980’s stating that his discharge had been upgraded.

3.  The applicant provides no supporting documentation.

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.  On 28 October 1964, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 11E (Armor Crewman).
3.  On 12 March 1965, the applicant was assigned for duty in Europe.  He performed duties as a loader, tank driver, and tank commander.

4.  On 23 November 1966, the applicant was permanently promoted to specialist five, pay grade E-5. 

5.  On 19 March 1967, the applicant was discharged with an honorable characterization of service for the purpose of immediate reenlistment.  On 
20 March 1967, he reenlisted for a 6 year term of active duty service.

6.  On 20 February 1968, the applicant returned to the United States for duty at Fort Riley, Kansas.

7.  On 14 January 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to report to morning formation.  The punishment included a forfeiture of $ 71.00 pay per month for 1 month, and 14 days restriction and extra duty.  The applicant did not appeal the punishment. 

8.  On 17 April 1969, the applicant accepted NJP for being absent from his place of duty for 45 minutes and for failure to report to morning formation.  The punishment included 14 days of restriction and extra duty.  The applicant’s appeal was denied.

9.  On 9 May 1969, the applicant’s commander recommended that the applicant be barred from reenlistment due to habitual misconduct and excessive indebtedness.  On or about 17 May 1969, the appropriate authority approved the recommendation.

10.  On 27 May 1969, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) (two specifications) and of breaking restriction.  His sentence consisted of reduction to pay grade E-4, a forfeiture of $181.00 pay per month for 1 month, and restriction for 45 days.  

11.  On 6 June 1969, the applicant was convicted by a summary court-martial of dereliction of duties.  His sentence consisted of reduction to pay grade E-3, a forfeiture of $145.00 pay per month for 1 month, and 60 days of restriction. 

12.  On 28 July 1969, the applicant was convicted by a summary court-martial of being AWOL.  His sentence consisted of reduction to pay grade E-2 and a forfeiture of $119.00 pay per month for 1 month.   
13.  On 29 September 1969, the applicant accepted NJP for being AWOL.  The punishment included a forfeiture of $41.00 pay per month for 1 month and 7 days of restriction and extra duty.  The applicant’s appeal was denied.

14.  On 7 August 1970, the applicant accepted NJP for twice not reporting to the education center.  The punishment included an oral reprimand and 7 days of extra duty.  The applicant did not appeal the punishment.

15.  On 24 January 1971, the applicant accepted NJP for failure to report to his place of duty.  The punishment included reduction to pay grade E-3 and 14 days of extra duty.  The applicant appealed the punishment but the available records do not show the commander’s decision.

16.  On 8 February 1971, the applicant accepted NJP for not reporting to his place of duty.  The punishment included reduction to pay grade E-2 (suspended). The applicant did not appeal the punishment.

17.  The applicant’s discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 31 March 1971, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He had completed 6 years, 1 month and 6 days of creditable active duty and he had 117 days of lost time due to being AWOL and in confinement.

18.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

19.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.   In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  There is no evidence of record showing that the applicant’s discharge had ever been upgraded.

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20070016793



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010033



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1