IN THE CASE OF:	  

		BOARD DATE:	        16 APRIL 2009

		DOCKET NUMBER:  AR20090000915 


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 a general discharge. 

2.  The applicant contends that physical and mental abuse he endured while on active duty resulted in his actions which led to his undesirable discharge.

3.  The applicant provides an unsigned self-authored statement, dated 
21 November 2008; an undated third-party statement signed by two people; a third-party statement, dated 3 March 1982, from an attorney; three third-party statements, dated 4 March 1982, from the school superintendent, mayor, and sheriff of Norfork, Arkansas; an unsigned self-authored statement, dated 
25 February 2009; a basic certificate, dated 1 January 1978, from the State of Arkansas Commission on Law Enforcement Standards showing that he was qualified as a certified law enforcement officer at the time; and a third-party letter, dated 11 February 2009, from his daughter 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 23 August 1966 at 19 years of age.  He completed basic combat training and was then reassigned to Fort Lewis, Washington in November 1966.  

3.  On 8 August 1967, the applicant was convicted by a special court-martial for absenting himself without authority from his organization on or about 
29 December 1966 and remaining so absent until on or about 8 April 1967; and for absenting himself without authority from his organization on or about 12 May 1967 and remaining so absent until on or about 12 July 1967.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $30.00 pay per month for 6 months.  His sentence was approved on 10 August 1967 and ordered to be duly executed.  On 29 September 1967, the unexecuted portion of the applicant's sentence to confinement at hard labor for 6 months was suspended for 6 months; however, on 8 January 1968, the unexecuted portion of his sentence to confinement at hard labor was vacated.  He was given credit for confinement from 29 December 1967.

4.  On 19 January 1968, the applicant was convicted by a special court-martial for absenting himself without authority from his organization on or about 
12 October 1967 and remaining so absent until on or about 12 December 1967.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $41.00 pay per month for 6 months.  On 26 January 1968, only so much of the applicant's sentence that provided for confinement at hard labor for 6 months and forfeiture of $40.00 pay per month for 6 months was approved and ordered to be duly executed.  On 29 May 1968, the unexecuted portion of the applicant's sentence to confinement at hard labor for 6 months was remitted, and he was released from confinement on that day.  He was then reassigned to Fort Leonard Wood, Missouri for advanced individual training in military occupational specialty 12A (Pioneer).

5.  On 3 January 1969, the applicant was convicted by a special court-martial for absenting himself from his organization on or about 18 June 1968, and remaining so absent until on or about 19 November 1968.  He was sentenced to confinement at hard labor for 6 months, forfeiture of $73.00 pay per month for 

6 months, and reduction in rank and pay grade from private (PV2)/E-2 to private (PV1)/E-1.  On 9 January 1969, the applicant's sentence was approved and ordered to be duly executed.  On 17 March 1969, the unexecuted portion of the applicant's sentence to confinement at hard labor for 6 months and forfeiture of $73.00 pay per month for 6 months was remitted effective 20 March 1969.

7.  Although the complete facts and circumstances surrounding the applicant's discharge (i.e., his separation packet) are not in his military records, they did contain a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge.)  This document shows that the applicant was discharged on 20 March 1969 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge - Unfitness and Unsuitability).  Item 11c (Reason and Authority) of this document shows that he was assigned a Separation Program Number (SPN) of “386.”  Section III of Army Regulation
635-5 (Separation Documents), in effect at the time, provided that an SPN of "386" is based on a separation for “Unfitness, an established pattern for shirking.” 

8.  On 22 July 1982, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his undesirable discharge to a general discharge.

9.  The applicant provided five third-party statements which all appear to have been prepared in conjunction with his application to the ADRB in 1982, which show that he was active in his community at the time as a deputy sheriff, water department superintendent, and school board member.  He also provided a third-party letter, dated 11 February 2009, from his daughter, who stated that the applicant was a police officer for most of the years of his life before he became disabled while on duty when he was struck by an automobile.  She also asks that the applicant's discharge be upgraded, as he was 62 years old and not in the greatest of health.

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  This regulation stated, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a provides, in pertinent part, 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.

12.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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.

13.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This 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 applicant contends that his undesirable discharge should be upgraded to a general discharge. 

2.  The evidence provided by the applicant regarding his post-service conduct was noted.  However, good post-service conduct alone is not a basis for upgrading a discharge.  Additionally, the applicant's contention that he was physically and mentally abused while on active duty was considered, but found to lack merit.  The applicant provided no evidence to support his contention.

3.  Although the applicant's separation packet is not in his military records, it is clear that the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness due to an established pattern for shirking.  The evidence of record clearly shows that the applicant was court-martialed on three occasions for multiple offenses of absence without leave.  Additionally, while his DD Form 214 covered the period 23 August 1966 to 20 March 1969, he was only credited with 4 months and 13 days of creditable service during this two and a half year time span due to absence without leave and confinement.  As the applicant did not provide any evidence which shows that any requirements of law and 
regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

4.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or 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)                                         AR20090000915



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ABCMR Record of Proceedings (cont)                                         AR20090000915



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