IN THE CASE OF:	  

		BOARD DATE:	       12 November 2008

		DOCKET NUMBER:  AR20080014962 


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, an upgrade of his undesirable discharge to an honorable discharge.  He also desires a hearing on his discharge.

2.  The applicant states that when he enlisted in the Regular Army, his recruiter promised him airborne training, supply school, and a tour in Vietnam.  However, despite submitting numerous requests, he was denied the opportunity to go to Vietnam.  He adds that he believes the Army did not honor its agreement.

3.  The applicant did not provide any additional documentary 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's record shows that after receiving a waiver of moral eligibility for enlistment in the Armed Forces, the applicant enlisted in the Regular Army for a period of 3 years on 13 June 1966.  Item 13 (Initial Assignment) of the applicant’s DD Form 4 (Enlistment Record) shows the entry “Airborne,” indicating that the applicant enlisted or volunteered for airborne training.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76A (Supply Specialist).  

3.  The applicant’s records also show he completed the Basic Airborne Course at Fort Benning, Georgia, and was awarded the Parachutist Badge.  He was subsequently assigned to Fort Bragg, North Carolina.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

4.  The applicant's records reveal a history of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 20 September 1966, for being absent without leave during the period from on or about 18 September 1966 through on or about 19 September 1966.  His punishment consisted of 7 days of restriction and 7 days of extra duty; and

	b.  on 30 December 1966, for being AWOL during the period from on or about 27 December 1966 through on or about 30 December 1966.  His punishment consisted of 14 days of restriction, 14 days of extra duty, and forfeiture of $21.00 per month for one month.

5.  On 27 November 1967, the applicant pled guilty at a Summary Court-Martial to two specifications of being AWOL during the periods from on or about
21 August 1967 through on or about 22 August 1967 and from on or about
31 August 1967 through on or about 14 October 1967.  The Court sentenced him to 14 days of restriction. The sentence was adjudged on 27 November 1967 and approved on 4 December 1967.  

6.  On 28 May 1968, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period from on or about 9 December 1967 through on or about 7 May 1968.  The Court sentenced him to confinement at hard labor for 3 months and forfeiture of $68.00 per month for 3 months.  The sentence was adjudged on 28 May 1968 and approved on 14 June 1968.

7.  On 3 July 1968, the unexecuted portion of the applicant’s sentence to confinement at hard labor for 3 months adjudged on 28 May 1968 was suspended effective 4 July 1968 for 3 months.

8.  On 5 March 1969, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period from on or about 16 July 1968 through on or about 19 February 1969.  The Court sentenced him to confinement at hard labor for 6 months and forfeiture of $73.00 per month for 6 months.  The sentence was adjudged on 5 March 1969 and approved on 5 March 1969.

9.  On 19 March 1969, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 6(a) of Army Regulation (AR) 635-212 (Personnel Separations) for unfitness. 

10.  On 19 March 1969, the applicant acknowledged notification of his pending separation action.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement.  He further indicated he understood that if his separation was a general discharge under honorable conditions, he could encounter substantial prejudice in civilian life.

11.  On 2 April 1969, the applicant’s immediate commander initiated elimination action from the service action against the applicant in accordance with AR
635-212 for unfitness.  The immediate commander cited the applicant’s four instances of AWOL, three instances of desertion, two instances of Special Courts-Martial, one instance of a Summary Court-Martial, and two instances of confinement, and remarked that further rehabilitation was futile.

12.  On 2 April 1969, the applicant’s senior commander recommended approval of the applicant’s elimination from the service for unfitness.  He further recommended the requirement for additional counseling and rehabilitation be waived in view of the conclusive evidence that the applicant had no motivation for continued service.  

13.  On 7 April 1969, the separation authority waived the requirement for a rehabilitative transfer and approved the applicant's discharge for unfitness under the provisions of AR 635-212 and directed that he be furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 15 April 1969.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he was issued an undesirable discharge with service characterized as under other than honorable conditions.  This form further shows he completed 1 year, 6 months, and 7 days of creditable active military service and had 483 days of lost time due to AWOL and confinement.  


14.  On 4 June 1984 and in response to his petition for a personal appearance, the Army Discharge Review Board (ADRB) notified the applicant that he was scheduled for a hearing in Syracuse, New York, during the month of September 1984.  However, on 25 July 1984, the applicant responded through counsel that he was incarcerated at the time and was scheduled for release on 5 October 1984.  

15.  On 5 August 1986, by letter addressed to the applicant’s counsel, the ADRB notified the applicant that the ADRB does not grant an indefinite continuance or postponement and that his appeal had been pending since March 1983.  Furthermore, the ADRB granted him an exception to existing policy and stated it would accept his application for a personal appearance before the Board if submitted within 90 days of his parole or release.  

16.  On 6 August 1986, the applicant withdrew his application and his case closed without further action.

17.  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.

18.  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.  .

19.  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.


20.  AR 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity that is, what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  The ABCMR may, in its discretion, hold or request additional evidence or opinions when it is deemed necessary, and the Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant's request for a formal hearing, a personal appearance is granted when the Board determines that an applicant may be able to clarify information or provide additional relevant information.  In this case, the evidence of record is sufficient to render a fair and equitable decision.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 

2.  With respect to the applicant’s arguments, the evidence of record shows that he enlisted for an airborne training option and that, subsequent to completing MOS training as a Supply Specialist, he was accordingly afforded the opportunity to attend and complete the Basic Airborne Course at Fort Benning, Georgia.  There is no evidence that the Army failed to honor the applicant’s enlistment option.  Furthermore, there is no evidence in the applicant’s records that he was promised an assignment in Vietnam.

3.  The evidence of record shows the applicant had an extensive history of misconduct as evidenced by his 2 instances of Article 15, 3 instances of Courts-Martial, and 4 instances of AWOL.  Furthermore, the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.


4.  The reason for the applicant’s discharge and the characterization of service were both proper and equitable.  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 an upgrade of his discharge.

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)                                         AR20080014962



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014962



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1