IN THE CASE OF:	  

		BOARD DATE:	       29 January 2009

		DOCKET NUMBER:  AR20080017997 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was wrongly accused of stealing and was transferred to another unit.  After a couple weeks, he ran out of money and went home.  He returned a couple weeks later only to find out that his commander had reported him as being absent without leave (AWOL) from the very first day that he was transferred.  While waiting for the military police to pick him up, he realized that he was being railroaded, and went home again.  This time he stayed home for about 3 months before returning to his unit.  Upon returning, he was placed in confinement for about 30 days.  When he was released he went home again.  When he returned he was given a choice of staying in and going to Germany, or accepting an administrative discharge.  He further states that he received two letters from the President of the United States informing him that any Soldier having a minimum of 155 good days of service could either reenlist or have his discharge upgraded.  At that time he was too young and stupid to care.  He subsequently married, had two children, earned his high school diploma, bought a new home, and acquired a certified job skill.  He was divorced and remarried, but retained custody of his two children.  He subsequently had four more children.  The applicant further states that he does not want any pension or other veteran benefit.  He just wants his military record to show his children that he was an "honest, god-fearing, country loving man."

3.  The applicant provides a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214).  
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.  On 11 September 1968, the applicant enlisted in the Regular Army for 
3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).

3.  On 3 March 1969, the applicant was assigned for additional training as a general vehicle repairman 'with the 2nd Battalion, School Brigade, Fort Knox, Kentucky.  There is no evidence of record showing that he completed this training.

4.  On 19 September 1969, the applicant was convicted by a special court-martial of being AWOL from on or about 24 March to 27 May 1969 and from on or about 26 June to 3 August 1969; and of escaping lawful confinement on 13 August 1969.  His sentence consisted of a forfeiture of $40.00 pay per month for 
3 months and confinement at hard labor for 3 months (suspended).  

5.  On 28 October 1969, the applicant was convicted by a special court-martial of being AWOL from on or about 22 to 30 September 1969.  His sentence consisted of a forfeiture of $50.00 pay per month for 3 months and confinement at hard labor for 3 months.  He served 62 days in confinement.

6.  The discharge packet is missing from his military records.  However, his 
DD Form 214 shows that he was administratively discharged on 1 December 1969, under the provisions of Army Regulation 600-212, for unfitness due to frequent involvement of a discreditable nature with civil or military authority.  His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate.  He had completed 5 months and 15 days of creditable active duty and had 252 days of lost time due to AWOL and confinement.

7.  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.

8.  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.  An undesirable discharge was normally considered appropriate.

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

10.  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.  The applicant contends that he was wrongly accused of stealing which led to his going AWOL.  He therefore believes that his discharge should be upgraded to honorable.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The type of discharge and reason therefore were appropriate considering all of the facts of the case.

4.  Notwithstanding the applicant's assertion that his commander wrongly accused him of stealing, there is no available evidence showing that he had any mitigating circumstances that warrant an upgrade of his discharge.  

5.  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 the aforementioned requirement.

6.  In view of the above, the applicant’s request should not be granted.

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)                                         AR20080017997





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017997



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1