IN THE CASE OF:	

		BOARD DATE:	  6 November 2008

		DOCKET NUMBER:  AR20080013281 


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 discharge be upgraded to a general discharge.

2.  The applicant states that he went to the veterans' hospital for some medical help, and they told him he had to get his discharge upgraded to a general discharge before they can help him.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) and a medication profile.

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 enlisted in the Regular Army on 9 October 1967.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He completed basic parachutist training.

3.  On 27 September 1968, the applicant was convicted by a general court-martial of being absent without leave (AWOL) from on or about 16 May to on or about 3 July 1968 and for escaping from lawful confinement.  He was sentenced to forfeit $60.00 pay per month for 6 months, confinement at hard labor for          6 months (suspended for 5 months), and to be reduced to Private, E-1.

4.  On 9 November 1970, charges were preferred against the applicant charging him with being AWOL from on or about 29 December 1968 to on or about 1 April 1969; from on or about 26 April 1969 to on or about 13 August 1970; and from on or about 21 September 1970 to on or about 16 October 1970.

5.  Action was initiated to separate the applicant under the provisions of Army Regulation 635-206, unauthorized absence in excess of one year.

6.  On 10 November 1970, a mental status evaluation was completed, and the applicant was found to be mentally responsible, to be able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

7.  On 16 November 1970, the applicant was afforded the opportunity to consult with appointed counsel.  He waived consideration of his case by a board of officers, waived personal appearance before such a board, and waived representation by counsel.  He understood that, as a result of issuance of a discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He elected not to submit a statement in his own behalf.  

8.  On 30 November 1970, the applicant departed AWOL.

9.  On 2 December 1970, the appropriate authority approved the recommendation to discharge the applicant under the provisions of Army Regulation 635-206 and directed he be issued an Undesirable Discharge Certificate.

10.  On 9 December 197, the applicant was discharged, with an undesirable discharge and a characterization of service of under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-206.  


He had completed 10 months and 22 days of creditable active service and had 802 days of lost time.  Notice of his constructive discharge was mailed to the applicant’s last known address.

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the discharge of enlisted personnel for misconduct when it was determined there was substantial evidence to support a determination of desertion or absence without leave; the unauthorized absence had continued for more than 1 year; retention was not considered desirable or in the best interest of the government; and trial by court-martial on a charge of desertion or AWOL was waived or deemed inadvisable by the general court-martial convening authority.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  While cognizance has been taken of the reason the applicant needs his discharge to be upgraded, the type of discharge he was given was and still is appropriate considering the frequency and length of his AWOLs.

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.




      _______ _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)                                         AR20080013281





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080013281



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1