IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080011597 


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 an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states that he departed his unit in an absent without leave (AWOL) status; however, he turned himself in and paid for his mistake.  He also adds that when he returned from AWOL, he worked for a sergeant doing carpenter and paint work at the office of special processing at Fort Bragg, North Carolina.  He also states that after his court-martial and subsequent to his 19 days of confinement, he departed to Fort Riley, Kansas, where he worked for a command sergeant major.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 2 July 1971; and a copy of his Undesirable Discharge Certificate, dated 2 July 1971, 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 records show he was inducted into the Army of the United States on 6 May 1970 and attended basic combat training at Fort Bragg.  The highest rank he attained during his military service was private (PV1)/E-1.

3.  On 7 June 1970, the applicant departed his unit in an AWOL status and on 21 June 1970, he returned to his unit.  

4.  On 25 June 1970, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the period on or about 7 June 1970 through on or about 22 June 1970.  His punishment consisted of 14 days of restriction and detention of $29.00 pay per month for one month.

5.  On 30 July 1970, the applicant again departed his unit in an AWOL status and was subsequently dropped from the rolls of the Army on 28 August 1970.  He remained in this status until he returned to military control on 8 March 1971.

6.  On 15 April 1971, the applicant pled guilty at a Special Court-Martial for one specification of being AWOL during the period from on or about 30 July 1971 through on or about 9 March 1971.  The Court sentenced him to confinement at hard labor for 4 months.  The sentence was adjudged on 15 April 1971 and approved on 20 April 1971.

7.  On 23 June 1971, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation (AR) 635-212 (Personnel Separations) by reason of unfitness.  The applicant's commander remarked that the applicant underwent extensive counseling and various other rehabilitative efforts; however, he refused to involve himself in seeking solutions to problems and was incapable of formulating any acceptable goals.  He was unresponsive, disruptive, and totally unable to be realistic in his behavior pattern. He repeatedly stated he would not return to duty because of his hatred toward the Army and his resentment of authority.  The immediate commander further recommended an Undesirable Discharge Certificate.


8.  On 23 June 1971, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under other than honorable conditions was issued to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf.

9.  On 23 June 1971, the applicant's intermediate commander recommended approval of the applicant's discharge with an Undesirable Discharge Certificate.

10.  On 23 June 1971, the separation authority approved the applicant’s discharge under the provisions of AR 635-212 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  

11.  On 30 June 1971, the unexecuted portion of the applicant's sentence to confinement at hard labor for 4 months was remitted.

12.  On 2 July 1971, the applicant was discharged from the Army.  The DD Form 214 he was issued at the time of his discharge confirms he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further confirms that he completed a total of 3 months and 16 days of creditable active military service and 311 days of lost time.

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

14.  AR 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of 


shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

15.  AR 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  AR 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 records reveal an extensive history of AWOL as well as a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ and one instance of a special court-martial. 

2.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  The applicant's discharge was in accordance with applicable regulation and all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general or an honorable discharge.





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)                                         AR20080011597



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080011597



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1