IN THE CASE OF:
BOARD DATE: 16 December 2008
DOCKET NUMBER: AR20080016234
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, upgrade of his undesirable discharge to an honorable discharge.
2. The applicant states that he was going through a bitter and painful divorce at the time. He adds that he is currently in desperate need of Department of Veterans Affairs (VA) medical services.
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 28 April 1971 in support of his request.
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 applicants 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 applicants 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 records show that he enlisted in the Regular Army for a period of 3 years on 7 April 1969. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Repairman) (erroneously shown as 62B on the DD Form 214). The highest rank/grade he attained during his military service was private (PV1)/E-1.
3. The applicants records also show that he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar. His records do not reveal any achievements or special acts during his military service.
4. On 13 March 1970, the applicant pled not guilty at a Special Court-Martial to one specification of being absent without leave (AWOL) during the period on or about 1 August 1969 through on or about 15 February 1970. The Court found him guilty of the charge and specification and sentenced him to confinement at hard labor for 4 months and forfeiture of $20.00 pay per month for 3 months. The sentence was adjudged on 13 March 1970.
5. On 19 March 1970, the convening authority approved the adjudged sentence, but suspended the forfeiture of $20.00 pay per month for 3 months for a period of 3 months.
6. On 3 June 1970, the unexecuted portion of the sentence to confinement at hard for 4 months and forfeiture of $20.00 pay per month for 3 months (suspended for 3 months) was ordered remitted.
7. On 5 March 1971, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 5 July 1970 through on or about 10 February 1971. The Court sentenced him to confinement at hard labor for 3 months. The sentence was adjudged on 5 March 1971 and was approved on 12 March 1971.
8. On 10 April 1971, the applicants immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 6-a(1) of Army Regulation 635-212 (Personnel Separations) for unfitness with an Undesirable Discharge Certificate.
9. On 10 April 1971, 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 in his behalf. He further indicated he understood that he might expect to encounter substantial prejudice in civilian life in the event a general
discharge under honorable conditions was issued to him. He further understood
that, as the result of issuance of an undesirable discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life.
10. On 12 April 1971, the applicant's immediate commander initiated a Certificate of Unsuitability for Enlistment/Reenlistment (Bar to Reenlistment) citing his two instances of Courts-Martial for being AWOL.
11. On 12 April 1971, the applicants immediate commander initiated elimination from the service action against the applicant in accordance with Army Regulation 635-212 for unfitness. The immediate commander cited the applicants convictions by two Special Courts-Martial for two specifications of AWOL.
12. On 14 April 1972, the applicant's senior commander recommended approval of the Certificate of Unsuitability for Enlistment/Reenlistment. On the same date, the senior commander also recommended approval of the applicants elimination from the service for unfitness with an Undesirable Discharge Certificate.
13. On 16 April 1971, the approval authority approved the applicant's Certificate of Unsuitability for Enlistment/Reenlistment.
14. On 23 April 1971, the separation authority waived the requirement for a rehabilitative transfer and approved the applicant's discharge for unfitness under the provisions of Army Regulation 635-212 and directed that he be furnished an Undesirable Discharge Certificate. Accordingly, the applicant was discharged on 28 April 1971. The DD Form 214 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 4 months and
26 days of creditable active military service and had 603 days of time lost due to AWOL and confinement.
15. There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board's
15-year statute of limitations.
16. Army Regulation 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.
17. Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel. 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 members 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. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his undesirable discharge should be upgraded to honorable.
2. There is no evidence in the applicant's records and he did not provide any substantiating evidence that he was undergoing personal problems at the time or that the alleged personal problems caused him to go AWOL. Even if he encountered a bitter and painful divorce as stated, there were other avenues the applicant could have used to address his problems had he chose to do so.
3. The applicant's records reveal a history of AWOL, two instances of courts-martial, and a bar to reenlistment. Accordingly, his chain of command initiated separation action against him. Furthermore, the applicants 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 ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits. In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust. The applicant did not 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) AR20080016234
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ABCMR Record of Proceedings (cont) AR20080016234
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