IN THE CASE OF:	  

		BOARD DATE:	  15 January 2009

		DOCKET NUMBER:  AR20080016237 


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.

2.  The applicant states, in effect, that he has been out of the Army for 40 years and has never been in trouble with the law due to the discipline he received during his service.  He has been an outstanding citizen since his discharge.  

3.  In support of his application, the applicant provides copies of four character reference letters.

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 30 November 1966, for 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 12 September 1967, the applicant was convicted by a special court-martial of one specification of putting another Soldier in fear by means of force and violence, and stealing from the Soldier a watch valued at $25.00; and two specifications of absenting himself from his unit:  from 22 August to 25 August 1967 and from 3 September to 5 September 1967.  He was sentenced to a forfeiture of $60.00 pay per month for six months and confinement at hard labor for six months.  The sentence was approved on 14 September 1967.

4.  On 7 December 1967, the unexecuted portion of the sentence to confinement at hard labor for six months was remitted.

5.  On 30 January 1968, the applicant was convicted by a special court-martial of four specifications of absenting himself from his unit:  from 31 December 1967 to 3 January 1968, from 3 January to 5 January 1968, from 9 January to 13 January 1968, from 14 January to 16 January 1968, and from 20 January to 24 January 1968; and one specification of escaping from the lawful custody of the charge of quarters Soldier on 24 January 1968.  He was sentenced to a forfeiture of $64.00 pay per month for six months and confinement at hard labor for six months.  The sentence was approved on 31 January 1968.

6.  On 26 March 1968, Charge II and its specification of escaping from the lawful custody of the charge of quarters Soldier was set aside by the convening authority.  The findings of guilty of Charge I and its specifications were affirmed.

7.  On 22 May 1968, the applicant's unit commander recommended he be required to appear before a board of officers convened under the provisions of Army Regulation 635-212 for the purpose of determining whether he should be discharged before the expiration of his term of service.  The unit commander stated that the action was recommended because of the applicant's suspected use of marijuana, his repeated absences without leave, and his intentional shirking of duties.  The unit commander also stated, in effect, that in all instances from on or about 1 August 1967 to the present, the applicant's performance of duty had been at the lowest quality and any attempts at rehabilitation would prove to be a waste of time and effort.

8.  On 22 May 1968, the applicant's battalion commander recommended approval of the applicant's discharge by reason of unfitness.

9.  On 9 June 1968, after meeting with counsel, the applicant acknowledged receipt of his proposed elimination from the service for unfitness.  He elected not to have his case heard before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged the effects in the event a general discharge was issued to him and further acknowledged that he may be ineligible for benefits as a veteran if an undesirable discharge was issued.  

10.  On 21 June 1968, the appropriate separation authority approved the discharge under the provisions of Army Regulation 635-212, for reason of unfitness, and directed the issuance of an Undesirable Discharge Certificate.  

11.  The applicant was discharged on 2 August 1968, in pay grade E-1, under the provisions of Army Regulation 635-212, with a character of service of under conditions other than honorable and he was issued an Undesirable Discharge Certificate.  He was credited with 9 months and 26 days of total service and 307 days of lost time due to being AWOL and in confinement.

12.  On 22 March 1982, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

13.  The applicant submits four character reference letters attesting to his dedication to his family and his post-service work as a deacon in his church and his good character.  The authors of the letters are a high school principal, a friend, a member of his church, and a pastor - all requested the applicant receive favorable consideration of his request for an upgrade of his discharge.

14.  Army Regulation 635-212 (Enlisted Soldiers), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Enlisted Separations), paragraph 3-7a provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  Army Regulation 635-200, paragraph 3-7b, also 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 contentions have been noted; however, the evidence of record shows that the applicant was convicted by special court-martial on 5 September 1968 of stealing and absenting himself from his unit from 22 August to 25 August 1967 and from 3 September to 5 September 1967.  He was also convicted by special court-martial on 12 January 1968 of four specifications of absenting himself from his unit:  from 31 December 1967 to 3 January 1968, from 3 January to 5 January 1968, from 9 January to 13 January 1968, from 14 January to 16 January 1968, and from 20 January to 24 January 1968.  The charge of escaping from the lawful custody of charge of Quarters Soldier was set aside on 26 March 1968.  

2.  The evidence also shows that in recommending approval of the applicant's discharge, his unit commander stated that in all instances from on or about 1 August 1967 up that point, the applicant's performance of duty had been at the lowest quality and any attempts at rehabilitation would prove to be a waste of time and effort.

3.  The evidence further shows that after consulting with counsel, the applicant acknowledged the proposed separation action for unfitness.  He waived his opportunity to appear before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged the effects of the issuance or a general or undesirable discharge.  

4.  The applicant has provided no evidence or argument to show his discharge should be upgraded and his military records contain no matter upon which an upgrade should be granted.  The documentation submitted in support of his application was reviewed; however, the documentation provided neither probative evidence nor a convincing argument in support of an upgrade of his discharge.

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

6.  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 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.




      _______ _   __x_____   ___
               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)                                         AR20080016237



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ABCMR Record of Proceedings (cont)                                         AR20080016237


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