IN THE CASE OF:	

		BOARD DATE:	        2 October 2008

		DOCKET NUMBER:  AR20080010870 


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 that his undesirable discharge be upgraded to honorable. 

2.  The applicant states, in effect, that he went absent without leave (AWOL) because he was young, his mother was very ill, and his request for leave was denied.  He states that in the 1960s blacks and whites were treated differently.  He also states that he needs his discharge upgraded so he can obtain benefits from the Department of Veterans Affairs (DVA).  

3.  The applicant provides one character reference letter.

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 was born on 27 July 1949.  He enlisted on 13 November 1968 for a period of 3 years.  While in basic combat training, on 15 January 1969, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

3.  While in advanced individual training, on 8 July 1969, in accordance with his plea, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from on or about 2 March 1969 to 26 May 1969.  He was sentenced to be confined at hard labor for 4 months and to forfeit $40 pay per month for 4 months.  On 22 July 1969, the convening authority approved the sentence but suspended the sentence to confinement at hard labor for 4 months.

4.  Records show the applicant went AWOL from 1 July 1969 to 12 August 1969; from 8 September 1969 to 9 December 1969; and from 12 January 1970 to 
16 September 1970.

5.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant’s DD Form 214 (Report of Transfer or Discharge) shows that he was discharged on 8 December 1970 with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 9 months and 13 days of creditable active service with 468 days of lost time due to being AWOL and in confinement.

6.  The applicant provided one character reference letter.  The letter states that the applicant is in need of medical and financial help due to a chronic medical condition that has rendered him disabled and unable to work, that he is remorseful of any action on his part due to his youth and immaturity that contributed to his military conduct, and that his mother was very dear to him.  

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

8.  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.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  

10.  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.  Age is not a sufficiently mitigating factor.  The applicant was 19 years of age when he enlisted.

2.  There is no evidence of record which shows the applicant was a victim of racial discrimination.

3.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

4.  The character reference letter submitted on behalf of the applicant fails to show that his discharge was unjust and should be upgraded.

5.  The applicant contended he was denied a leave.  The maximum leave period he could have taken would have been about 30 days.  He was AWOL for about one year.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  ____XX____  ____XX____  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.


      ______XXXXX_ _   _______   ___
               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)                                         AR20080010870



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ABCMR Record of Proceedings (cont)                                         AR20080010870



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