IN THE CASE OF:	  

		BOARD DATE:	        11 DECEMBER 2008

		DOCKET NUMBER:  AR20080015825 


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 undesirable discharge be upgraded, that all lost time due to being absent without leave (AWOL) be removed from his records and that he be present during the Board's hearing of his case.

2.  The applicant states, in effect, that he was unaware that he had been given an undesirable discharge until he received a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in 2007 and discovered that he was charged with being AWOL as well.  He goes on to state that he was never AWOL and he was never court-martialed or otherwise punished under the Uniform Code of Military Justice (UCMJ) for the alleged AWOL offense.  He also states that his court-martial for an alleged assault was reversed and therefore his record should be clear on that matter.  He continues by stating that he made some bad judgments due to his immaturity but he was a good combat Soldier and leader and his record speaks for itself.  He further states that he desires to be present at any hearing of his case in the event that the Board is undecided about correcting his record and upgrading his discharge.

3.  The applicant provides a one-page letter of explanation of his application, a copy of page 3 from his DA Form 20 (Record of Assignments), a copy of a DA Form 20B (Insert Sheet to DA Form 20), and copies of his DD Forms 214.

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 26 September 1950 and enlisted in Richmond, Virginia, on 14 November 1967 for a period of 3 years.  He completed his basic training at Fort Gordon, Georgia, and was transferred to Fort Leonard Wood, Missouri, to undergo his advanced individual training (AIT) as a Pioneer.

3.  On 9 April 1968, while still in AIT, he was convicted by a special court-martial of assaulting a superior noncommissioned officer with a dangerous weapon and of breaking restriction.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.  There is no evidence to show that his court-martial conviction was ever set aside.

4.  He completed his training and was released from confinement to be transferred to Vietnam on 3 October 1968.  He was advanced to the pay grade of E-3 on 5 October 1968, the highest pay grade he ever achieved.

5.  On 5 January 1969, nonjudicial punishment was imposed against him for being in the village of Ky Khoung, an off-limits area.  His punishment consisted of a reduction to the pay grade of E-2 and extra duty.

6.  On 12 May 1969, he was convicted by a special court-martial of two specifications of assaulting a fellow enlisted man.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay, and reduction to the pay grade of E-1.  However, on 23 July 1969, the convening authority suspended the unexecuted portion of the sentence pertaining to confinement at hard labor for 6 months until 24 October 1969, unless sooner vacated.  There is no evidence to show that his court-martial conviction was ever set aside.

7.  The applicant went AWOL on 24 July 1969 and remained absent until he was apprehended on 1 August 1969.  On 2 August 1969, the suspended sentence was vacated and the applicant was returned to the Correctional Holding Detachment to serve the remainder of his sentence.  The applicant went AWOL when he was being rehabilitatively transferred to another unit and failed to report as ordered.
8.  On 14 September 1969, the applicant's commander initiated action to separate him from the service under the provisions of Army Regulation 635-212 (Personnel Separations Discharge Unfitness and Unsuitability) for unfitness due to his repeated involvement in incidents of a discreditable nature with military authorities.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

9.  The appropriate authority (a major general) approved the recommendation on 22 September 1969 and directed that he be furnished an Undesirable Discharge Certificate.

10.  The applicant was transferred to Oakland Army Base, California, where he was discharged under other than honorable conditions on 28 September 1969 under the provisions of Army Regulation 635-212 for unfitness due to his frequent involvement in incidents of a discreditable nature with military authorities.  He had served 1 year, 6 months, and 3 days of total active service and had 132 days of lost time due to AWOL and confinement.  He also authenticated his DD Form 214 at the time of his discharge.

11.  Additionally, he was advised of the procedures to request an upgrade of his discharge by the Army Discharge Review Board (ADRB) and this Board and acknowledged by his signature that he understood the procedures.  There is no evidence that he ever applied to the ADRB within that board's 15-year statute of limitations.

12.  On 30 June 1975, the applicant again enlisted in the Regular Army in Houston, Texas, for a period of 3 years.  He indicated that he had no prior service and was transferred to Fort Jackson, South Carolina, to undergo his basic training.  While still at Fort Jackson, his commander initiated action on 4 September 1975 to discharge the applicant under the provisions of Army Regulation 635-200 for misconduct - fraudulent entry.  After consulting with counsel, the applicant waived all of his rights and declined to submit a statement in his own behalf.

13.  The appropriate authority (a major general) approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.  Accordingly, he was discharged under honorable conditions on 9 October 1975 under the provisions of Army Regulation 635-200, chapter 14, for misconduct - fraudulent entry.

14.  On 9 September 1991, the applicant authorized a probation and parole officer for the Commonwealth of Virginia, Department of Corrections, permission to obtain copies of his military records.
15.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy criteria and administrative instructions regarding an applicant's request for the correction of a military record.  It provides, in pertinent part, that the decision to grant a formal hearing in which the applicant appears before the panel designated to hear a particular case is decided at the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil and/or military authorities, established pattern for shirking, established pattern of failure to pay just debts, drug addiction, failure to support dependents, and lewd or indecent acts were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

3.  The applicant’s contentions have been noted by the Board.  However, they are not supported by the evidence submitted with his application or the evidence of record and his contentions alone are not sufficiently mitigating to warrant relief when compared to his repeated misconduct and his otherwise undistinguished record of service.

4.  While the applicant did not receive any apparent punishment under the UCMJ for being AWOL, the evidence of record clearly shows that once he was apprehended, his suspended court-martial sentence was vacated, and he was immediately returned to confinement and separation proceedings were initiated.  Although he did not receive punishment for that offense, he was still accountable for his lost time and was charged appropriately for that time.

5.  The applicant's contention that he was unaware that he received a discharge under other than honorable conditions has been noted and found to lack merit.  The evidence of record clearly shows that not only was he aware that he was being processed for separation under Army Regulation 635-212 for unfitness and was subject to be discharged under other than honorable conditions, he also signed his DD Form 214 at the time he was issued his Undesirable Discharge.  Accordingly, there appears to be no basis to grant his request.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080015825



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ABCMR Record of Proceedings (cont)                                         AR20080015825



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