IN THE CASE OF:	  

		BOARD DATE:	        05 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017209 


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 general discharge be upgraded to an honorable discharge. 

2.  The applicant states that his discharge should be upgraded because he served his time and was a good Soldier after his absence without leave (AWOL) issues.  

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of this 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 military records show that he enlisted in the Regular Army on 18 August 1965.  He completed basic training at Fort Dix, New Jersey, then was reassigned to Redstone Arsenal, Alabama for advanced individual training (AIT) in military occupational specialty (MOS) 55B (Ammunition Specialist).  He did not complete his 55B AIT and was reassigned to Fort Polk, Louisiana for training in MOS 71A (Clerk).  However, prior to departing Redstone Arsenal, he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from his unit on or about 11 December 1965, and remaining so absent until on or about 12 December 1965.  His punishment consisted of a forfeiture of $43.00.

3.  The applicant completed his AIT training and was awarded MOS 71A, which was later converted to MOS 70A with the same duty title.  He departed Fort Polk for Fort Lewis, Washington, but prior to departing Fort Polk, he accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on 23 February 1966.  His punishment consisted of a forfeiture of $22.00, restriction for 14 days, and extra duty for 14 days.

4.  While stationed at Fort Lewis the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about
5 August 1966, and remaining so absent until on or about 9 August 1966.  His punishment consisted of a suspended reduction from private first class (PFC)/E-3 to private (PV2)/E-2, and a forfeiture of $20.00.  The suspended reduction was later vacated and duly executed

5.  The applicant's unit at Fort Lewis made a permanent change of station to the Republic of Vietnam and he served in Vietnam from 2 September 1966 to
2 August 1967.  He was then reassigned to Fort Eustis, Virginia.

6.  On 29 March 1968, the applicant was convicted by a special court-martial at Fort Dix for being AWOL from his unit at Fort Eustis on or about 16 October 1967 and remaining so absent until on or about 19 January 1968, and for being AWOL from his unit at Fort Dix on or about 23 January 1968 and remaining so absent until on or about 2 March 1968.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of $68.00 pay per month for 3 months.  His sentence was approved and ordered to be duly executed that same day.

7.  The applicant was reassigned to Fort Campbell, Kentucky in June 1968.  He was then reassigned to Fort Carson, Colorado in August 1968.



8.  On 3 December 1968, the applicant was convicted by a special court-martial for being AWOL his unit on or about 24 August 1968 and remaining so absent until on or about 8 November 1968.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $76.00 pay per month for 6 months.  On
13 December 1968, the applicant's sentence was approved and ordered to be duly executed, but the execution of that portion of his sentence which adjudged confinement at hard labor was suspended effective 19 December 1968 until
2 June 1969, and appears to have been remitted without further action.

9.  In January 1969, the applicant departed Fort Carson for an assignment at Fort Leonard Wood, Missouri, where he served until he was released from active duty on 29 May 1969.  His DD Form 214 essentially shows that he was issued a general discharge under honorable conditions.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge.  

2.  The applicant's contention that his discharge should be upgraded because he served his time and was a good Soldier was considered, but not found to have merit.  While he contends that he was a good Soldier, his record of NJP and two court-martial convictions show otherwise.

3.  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.

4.  The applicant's entire record of service, including his service in Vietnam, was considered.  However, the multiple offenses committed by the applicant so far outweighs his record of military service that upgrade of his discharge cannot be justified.  In view of the foregoing, there is no basis for upgrading the applicant's general discharge to an honorable 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)                                         AR20080017209



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017209



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1