IN THE CASE OF:	

		BOARD DATE:	        25 November 2008

		DOCKET NUMBER:  AR20080014782 


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 honorable.

2.  The applicant states that he was in a fight while stationed in Korea and he was disciplined while others involved did not receive any charges.  He contends that he was unjustly punished and that racial prejudice had a big impact on his superior’s decision.   

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 was inducted on 10 June 1969.  He successfully completed basic combat training and advanced individual training in military occupational specialty 16D (hawk missile crewman).  

3.  On 19 November 1970, in accordance with his plea, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 29 December 1969 to 28 September 1970.  He was sentenced to be confined at hard labor for 6 months, to forfeit $62 per month for 6 months, and to be reduced to E-1.  On 27 November 1970, the convening authority approved the sentence but suspended confinement at hard labor in excess of 30 days for 5 months.  

4.  The applicant arrived in Korea on 20 December 1970. 

5.  On 11 February 1971, the suspended portion of the applicant’s sentence to confinement was vacated.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was transferred back to the United States on 6 April 1971 for confinement.  

6.  On 26 May 1971, the unexecuted portion of the applicant’s sentence to confinement was remitted effective 2 June 1971.      

7.  The applicant went AWOL on 14 June 1971 and returned to military control on 12 September 1972.

8.  On 26 September 1972, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-206 for misconduct due to unauthorized absence in excess of one year.  

9.  On 27 September 1972, 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 own behalf.      

10.  On 6 October 1972, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.

11.  The applicant went AWOL on 6 October 1972. 

12.  The applicant was discharged in absentia with an undesirable discharge on 13 October 1972 under the provisions of Army Regulation 635-206 for misconduct due to unauthorized absence in excess of one year.  He had served 11 months and 4 days of total active service with 870 days lost due to AWOL and confinement.  
13.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Section VII of the regulation provided, in pertinent part, for the separation of personnel for desertion and absence without leave.  Paragraph 45b of the regulation stated that an individual might be considered for discharge under this regulation when the unauthorized absence had continued for more than one year.  An undesirable discharge was normally considered appropriate.  

15.  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.  

16.  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.  There is no evidence of record which shows the applicant was a victim of racial discrimination.

2.  The applicant’s record of service included one special court-martial conviction and 870 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 a general or an honorable discharge.

3.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20080014782



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ABCMR Record of Proceedings (cont)                                         AR20080014782



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