IN THE CASE OF:	  

		BOARD DATE:		  21 April 2009

		DOCKET NUMBER:  AR20090001133 


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, upgrade of his undesirable discharge to an honorable discharge. 

2.  The applicant states that he is trying to obtain Department of Veterans Affairs (VA) benefits for hospitalization. 

3.  The applicant provides no documentation 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.  On 22 May 1964, the applicant, an enlisted member of the U.S. Army Reserve (USAR), was ordered to active duty for training.  He completed his initial training and was awarded military occupational specialty (MOS) 941.00 (Cook).  

3.  On 10 November 1964, he was released from active duty for training and returned to his Reserve unit.

4.  On 17 June 1965, the applicant enlisted in the Regular Army for 3 years.  He completed additional training and was awarded MOS 13A (Field Artillery Basic).

5.  On 15 July 1965, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) on 13 July 1965.  The punishment included a forfeiture of $10.00 pay per month for 1 month.

6.  On 16 September 1965, the applicant received NJP for AWOL from 7 to 
11 September 1965.  The punishment included a forfeiture of $40.00 pay per month for 2 months.

7.  On 10 December 1965, the applicant was convicted by a special court-martial for AWOL (21 days) and escape from lawful custody.  His sentence consisted of confinement at hard labor for 2 months and forfeiture of $60.00 pay per month for 2 months.  He served 43 days in confinement.

8.  On 19 January 1966, the applicant was assigned for duty with 3rd Battalion, 13th Artillery Regiment, in Hawaii.

9.  On 21 February 1966, the applicant was convicted by a special court-martial for AWOL (two specifications).  His sentence consisted of confinement at hard labor for 6 months, reduction to pay grade E-1, and forfeiture of $62.60 pay per month for 6 months.  On 7 September 1966, the applicant was released from confinement after having served his sentence.

10.  On 31 October 1966, the applicant went AWOL.  He was returned to military control on 8 December 1966.  He was subsequently pending elimination action under the provision of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion).

11.  The discharge packet is missing from his military records.  However, his 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was administratively discharged on 30 December 1966 
under the provisions of Army Regulation 635-206.  His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate.  He had completed 1 year and 17 days of total creditable active service and he had accrued 346 days of lost time due to AWOL and confinement.

13.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct, including AWOL or desertion.  Specifically, the regulation provided for elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, for an offense for which the maximum penalty under the UCMJ is death or confinement in excess of 1 year.  Separation with an undesirable discharge was normally considered appropriate.

14.  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.

15.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded so that he can obtain VA benefits. 

2.  The evidence of record shows the applicant was administered two Article 15 actions and convicted by two special courts-martial during his last period of service.  Furthermore, he had accrued 346 days of lost time.

3.  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.

4.  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.

5.  Additionally, it is not the practice of this Board to upgrade a discharge solely for the purpose of making an applicant eligible for VA or other benefits.

6.  Therefore, based on the applicant's record of indiscipline, he clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to a general, under honorable conditions 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.



      __________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)                                         AR20090001133



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ABCMR Record of Proceedings (cont)                                         AR20090001133



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