IN THE CASE OF:	  

		BOARD DATE:	        14 APRIL 2009

		DOCKET NUMBER:  AR20080019919 


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 (UD) be upgraded to an Honorable Discharge (HD).

2.  The applicant states, effect, he was only 18 years old when he entered the Army.  He had family problems which required his presence at home because he had to take care of his children.  He sought help from the unit Chaplain in obtaining a hardship discharge, but he received no assistance.  He further states he did not know what else to do.

3.  The applicant provides a self-authored handwritten note 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 30 September 1946.  He enlisted in the Regular Army for 3 years on 28 December 1964.  His DD Form 4 (Enlistment Record – Armed Forces of the United States) shows he was married and had only one dependent, his wife.

3.  The applicant was sent to Fort Polk, LA, for Basic Combat Training (BCT).  He started BCT on or about 4 January 1965.  After successfully completing BCT, he was transferred to Fort Leonard Wood, MO, for Advanced Individual Training (AIT) in military occupational specialty (MOS) 12A (Pioneer).

4.  The applicant was absent without leave (AWOL) from his AIT unit from
13 March 1965 through 25 April 1965 (44 days).  He was returned to military control and placed in confinement on 26 April 1965.  On 17 May 1965, he was tried before a special court-martial for a violation of Article 86 (AWOL) of the Uniform Code of Military Justice (UCMJ).  In accordance with his plea of guilty, he was found guilty and sentenced to be confined for 6 months and to forfeit $25.00 pay per month for 6 months.  Only so much of the sentence as provided for confinement for 3 months and forfeiture of $25.00 pay per month for 3 months was approved, but the execution of that portion of the sentence adjudging
3 months’ confinement was suspended for 3 months.  He was released from confinement on 19 May 1965, after serving 23 days.

5.  The applicant again went AWOL on 23 May 1965 and remained absent through 17 June 1965 (26 days).  He was returned to military control and placed in confinement on 18 June 1965.  On 6 July 1965, he was tried before a special court-martial for a violation of Article 86, UCMJ.  In accordance with his plea of guilty, he was found guilty and sentenced to be confined for 6 months.  The sentence was approved and he was confined at the Post Stockade, Fort Sill, OK.  He was released from confinement on 20 August 1965, after serving 63 days.

6.  The applicant’s separation packet is not available for review; however, his DD Form 214 shows he was discharged on 20 August 1965 under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  It also shows he had 2 months and 20 days of creditable active Federal service, and 156 days of lost time due to AWOL and confinement.

7.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided, in pertinent part, that members found to be unfit for further military service, and without rehabilitative potential, would be separated.  A UD was normally considered appropriate.

8.  Appropriate Army regulations provide guidance on the administration of discharges under honorable conditions, stating:

	a.  an HD 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.

	b.  a General Discharge (GD) 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 HD.  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 requests his UD be upgraded to an HD.

2.  The applicant was a married 18-year old when he voluntarily enlisted in the Regular Army; his wife was his only dependent.  There is no evidence in the record to show that he was having problems with his wife or that family problems were the reason for his AWOL.

3.  The applicant was convicted by two special courts-martial for two separate AWOL offenses.  He spent 86 days in confinement.  During his confinement, he was processed for discharge under the provisions of Army Regulation 635-208 for unfitness.

4.  Without evidence to the contrary, it is presumed the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is certainly commensurate with his overall record of military service.

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 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.



      ________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)                                         AR20080019919



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ABCMR Record of Proceedings (cont)                                         AR20080019919



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