IN THE CASE OF:	  

		BOARD DATE: 	        2 June 2009

		DOCKET NUMBER:  AR20080019801 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he was drafted in 1966 and that he had previously been injured (shot in the back three times) before going to boot camp.  He states that he was young and frustrated and constantly explaining that he had restrictions on some of the activities due to his injuries.  He claims the doctor at the processing center assured him that he would send for his medical records but his medical records never surfaced.  He goes on to state that his frustration grew and that he was not in the proper medical condition to perform as a good Soldier and that this caused him to react irrationally because no one seemed to care or even attempt to listen to his cause.  He indicates that he was taken to a court-martial because of such frustration and that he was informed if he pled guilty he would be discharged with an automatic upgrade of his discharge to a general discharge. 

3.  The applicant provides service medical records, a copy of his DD Form 214 (Report of Transfer or Discharge), a letter from an attorney, and a letter he wrote to a Member of Congress 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 was born on 18 August 1946.  He was inducted into the Army of the United States on 2 August 1966.  While in basic combat training, nonjudicial punishment was imposed against the applicant on 18 November 1966 for being absent without leave (AWOL) for approximately 12 hours on 16 November 1966.  His punishment consisted of a forfeiture of pay and extra duty.  He completed basic combat training.

3.  On 27 March 1967, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 3 January 1967 to 1 March 1967.  He was sentenced to forfeit $60.00 pay per month for 3 months and to be confined at hard labor for 3 months.  On 5 April 1967, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 2 months, hard labor without confinement for 1 month and to forfeit $60.00 pay per month for 3 months.  

4.  On 15 June 1967, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  

5.  On 15 June 1967, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf.

6.  On 27 July 1967, in accordance with his pleas, the applicant was convicted by a special court-martial of two specifications of being AWOL (from 3 April 1967 to 7 April 1967 and from 11 April 1967 to 5 June 1967).  He was sentenced to be confined at hard labor for 6 months and to forfeit $64.00 pay per month for 
6 months.  On 31 July 1967, the convening authority approved the sentence. 



7.  On 7 August 1967, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.

8.  On 11 August 1967, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 4 months and 4 days of creditable active service with 185 days lost due to being AWOL and in confinement.

9.  On 24 April 1981, the Army Discharge Review Board denied the applicant's request for an honorable discharge. 

10.  An unrelated, earlier Army Board for Correction of Military Records (ABCMR) considered the applicant's request for a medical discharge.  His request was denied by the ABCMR on 15 March 2000.

11.  Army Regulation 635-212, 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.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 sets forth the basic authority 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.

13.  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.  Age is not a sufficiently mitigating factor.  The applicant was 20 years old when he was inducted.   

2.  A discharge upgrade is not automatic.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

3.  The applicant’s record of service included one nonjudicial punishment, two special court-martial convictions, and 185 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20080019801



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ABCMR Record of Proceedings (cont)                                         AR20080019801



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