IN THE CASE OF:	

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080017497 


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 his undesirable discharge under conditions other than honorable be upgraded to at least a general discharge under honorable conditions.

2.  The applicant states he was absent without leave (AWOL) for 120 days while he was at Fort Bliss, Texas, because he was in jail.  He states that upon his release from jail he accepted his discharge under the impression that it was a medical discharge.  He states he is trying to file a claim with the Department of Veterans Affairs (VA) but they tell him he is not qualified because of his type of discharge.

3.  The applicant provides no additional evidence or official documentation 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's military personnel records show he enlisted in the Regular Army on 7 September 1965 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 12C (Bridge Specialist).

3.  The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 9 October 1967 and 2 November 1967.  His offenses included disobeying a lawful order and assault on a noncommissioned officer.

4.  On 2 February 1968, the applicant pled guilty and was found guilty by a special court-martial of being AWOL during the periods from 4 December 1967 to 12 January 1968 and from 12-15 January 1968.  His sentence consisted of confinement for 6 months, forfeiture of $64 per month for 6 months, and reduction to private/pay grade E-1.  The convening authority approved the sentence on 3 February 1968.

5.  On 27 March 1968, the convening authority remitted the unexecuted portion of the applicant's sentence effective on 3 April 1968.

6.  The applicant's discharge packet is not available.

7.  On 3 April 1968, the applicant was discharged under the provisions of Army Regulation 635-212 (Personnel Separation, Discharge, Unfitness and Unsuitability) for unfitness due to frequent incidents of a discreditable nature with civilian or military authorities.  The applicant was issued an Undesirable Discharge Certificate.  He had completed 2 years, 2 months, and 26 days of active service that was characterized as under conditions other than honorable.  He had 121 days of time lost.

8.  The applicant's DA Form 20 (Enlisted Qualification Record) indicates he received three unsatisfactory conduct ratings and two unsatisfactory efficiency ratings.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  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.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

11.  Army Regulation 635-200 (Personnel Separations), in effect at the time, provided that an honorable discharge would be furnished when the individual had character ratings of at least "good," had efficiency ratings of at least "fair," had not been convicted by a general court-martial, and had not been convicted more than once by a special court-martial.  The regulation also provides that an individual may, where otherwise ineligible, receive an honorable discharge if he has, during his current enlistment, period of obligated service, or any extensions thereof, received a personal decoration, or is separated as a result of a disability incurred in line of duty.

12.  Army Regulation 635-200, in effect at the time, provided for a general discharge under honorable conditions for an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.  A discharge under honorable conditions was authorized if an individual had been convicted of an offense by general court-martial or convicted by more than one special court-martial in the current enlistment.  However, this decision was discretionary.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  The "jail" the applicant stated he was in was the Army stockade at Fort Bliss where he was serving his sentence that he had received at his special court-martial.  There is no evidence the applicant was being processed for a medical discharge.

2.  Although the applicant's separation package was not available, it is presumed that the Army's administrative processing of the applicant for discharge is correct.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

4.  The applicant did not maintain character ratings of at least "good" and efficiency ratings of at least "fair" during his period of enlistment.

5.  A review of the applicant's record of service, which included non-judicial punishment and conviction by a special court-martial, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

7.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  In addition, granting veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the VA.

8.  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 that 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)                                         AR20080017497



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ABCMR Record of Proceedings (cont)                                         AR20080017497



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