IN THE CASE OF:	  

		BOARD DATE:	        12 MAY 2009

		DOCKET NUMBER:  AR20090000997


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 he thought he was receiving a hardship discharge as a result of his father’s death.  He states his service did not warrant a UD.  He adds he has demonstrated good character since his discharge.

3.  The applicant provides:

	a.  a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge);

	b.  a handwritten statement;

	c.  a statement from his daughter;

	d.  a 23 September 2008 statement from a friend;

	e.  a 27 October 2008 statement from his daughter-in-law;

	f.  a statement from his son;

	g.  a U.S. Army Freedom Team Salute Commendation indicating The American Legion Department of Michigan recommended him for the honor;

	h.  a 28 October 2008 handwritten note from his wife; and

	i.  a 4 December 2008 Oakland County, MI, Veterans’ Service Division letter forwarding his request for correction of his service records.

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 enlisted in the Regular Army for 3 years on 27 December 1962. Following infantry training at Fort Polk, LA, he was awarded military occupational specialty 111.07 (Light Weapons Infantryman) and transferred to Fort Benning, GA, for basic airborne training.  He completed that training and was awarded the Parachutist Badge.

3.  In July 1963, he was assigned to Fort Campbell, KY, as his first permanent duty station.  His unit of assignment was the 501st Infantry.

4.  The applicant was a habitual AWOL (absentee without leave).  His record shows periods of AWOL and confinement (CONF) totaling 230 days:

19630617-19630619	3 days (AWOL)
19640119-19640119	1 day (AWOL)
19640201-19640310	39 days (AWOL)
19640312-19640425	45 days (CONF)
19640622-19640716	25 days (AWOL)
19640805-19640824	20 days (AWOL)
19640825-19641129	97 days (CONF)

5.  On 29 October 1964, the applicant acknowledged notification he was being processed for discharge under the provisions of Army Regulation 635-208 for unfitness.  He further acknowledged he would receive a UD which would deprive him of "many rights and benefits as a veteran under both Federal and State law; and that [he] may expect to encounter some prejudice in civilian life…."  He waived his rights and declined to submit a statement in his own behalf.

6.  On 16 November 1964, the approving authority approved the recommendation to discharge the applicant under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  The issuance of a UD was directed.

7.  On 30 November 1964, the applicant was discharged with a UD.  He had served 1 year, 3 months, and 16 days of creditable service and had 230 days of lost time due to his AWOL and confinement.

8.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  An undesirable discharge was normally considered appropriate.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states that 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.  Paragraph 3-7b states that 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 an HD.  He thought he was receiving a hardship discharge and he believes his quality of service was good enough to warrant an HD.

2.  The applicant was a habitual AWOL, which was the reason for his discharge. The record shows he signed an acknowledgment of counseling explaining exactly why he was being discharged.  The applicant’s claim he thought he was receiving a hardship discharge is disingenuous.  His quality of service was not good enough to warrant anything other than the UD he received.

3.  The applicant has apparently become a good citizen, husband, and father in the intervening 45 years.  His family and friends speak highly of him, and The American Legion recognized his service to the U.S. Army (apparently in a civilian capacity) by nominating him for a Freedom Team Salute Commendation signed by the Secretary of the Army and the Chief of Staff of the Army.

4.  The applicant is commended for his post-service conduct and accomplishments; however, these post-service accomplishments are insufficient to overcome the conduct which led to his UD from active duty.

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)                                         AR20090000997



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ABCMR Record of Proceedings (cont)                                         AR20090000997



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