IN THE CASE OF:	  

		BOARD DATE:	        28 October 2008

		DOCKET NUMBER:  AR20080014440 


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 1974 undesirable discharge be upgraded to honorable. 

2.  The applicant states, in effect, that in 1979/1980 the General at Fort Sill, Oklahoma, changed his 1974 discharge to honorable.

3.  The applicant provides no additional evidence 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 enlisted on 18 October 1972 for a period of 4 years.  He successfully completed basic combat training, advanced individual training, and basic airborne training.  He was awarded military occupational specialty 11B (light weapons infantryman).

3.  On 14 March 1973, nonjudicial punishment was imposed against the applicant for failure to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  On 5 September 1973, contrary to his pleas, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 20 July 1973 to 25 July 1973 and from 31 July 1973 to 14 August 1973.  He was sentenced to be restricted to the company area for 60 days, to perform hard labor without confinement for 60 days, to forfeit $100.00 pay per month for 3 months, and to be reduced to E-1.  On 10 October 1973, the convening authority approved the sentence.

5.  Records show the applicant was AWOL from 27 August 1973 to 28 August 1973.

6.  On 16 October 1973, nonjudicial punishment was imposed against the applicant for being AWOL from 26 September 1973 to 10 October 1973.  His punishment consisted of correctional custody for 21 days and a forfeiture of pay (suspended).

7.  On 16 October 1973, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. 

8.  On 17 October 1973, the applicant consulted with counsel and waived consideration of his case by a board of officers, waived representation by counsel, and elected not to submit a statement on his behalf.   

9.  Records show the applicant was AWOL from 29 October 1973 to 19 November 1973.

10.  On 20 December 1973, the separation authority approved the recommendation for separation and directed the issuance of an undesirable discharge.

11.  Accordingly, the applicant was discharged on 16 January 1974 with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 1 month, and 1 day of total active service with 58 days of lost time due to AWOL.
12.  In 1974, the Army Discharge Review Board (ADRB) denied the applicant’s request for a general discharge.

13.  The applicant subsequently twice fraudulently enlisted in the Regular Army (on 25 May 1976 and on 14 February 1978, respectively) and was twice discharged for concealing his prior service (on 13 October 1976 and on 13 July 1978, respectively).  

14.  On 14 July 1978, the applicant enlisted in the Regular Army and was discharged on 2 May 1980 under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10 (discharge for the good of the service in lieu of trial by court-martial).

15.  On 24 June 1983, the ADRB denied the applicant's request to upgrade his January 1974 discharge to an honorable discharge.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  Chapter 13, paragraph 13-5a(1), provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  

17.  Army Regulation 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.  

18.  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.  The applicant’s administrative separation in 1974 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

3.  There is no evidence to show that anyone at Fort Sill or anywhere else changed his 1974 discharge to honorable.

4.  The applicant's record of service during the period under review included two nonjudicial punishments, one special court-martial conviction, and 58 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

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.




      _________XXXX________________
                 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)                                         AR20080014440





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ABCMR Record of Proceedings (cont)                                         AR20080014440



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