IN THE CASE OF:	  

		BOARD DATE:	       27 August 2009

		DOCKET NUMBER:  AR20090005335 


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 under honorable conditions.

2.  The applicant states that he was a kid and really did not know what he wanted in life.  If he had it to do over, he would stay in the military.  

3.  The applicant provides, in support of his application, copies of two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 November 1967, at age 17, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 63H (Power Train Repairman).

3.  On 23 June 1968, the applicant departed Aberdeen Proving Grounds, Maryland for duty in Germany.  He was subsequently assigned to the 16th Signal Battalion with duty as a wheeled vehicle repairman.

4.  On 20 August 1968, the applicant was honorably separated for immediate reenlistment.  On 21 August 1968, the applicant reenlisted for a second 3-year term of active duty service.  

5.  On 16 January 1969, the applicant was assigned to the 572nd Heavy Equipment/Maintenance Company for duty as a wheeled vehicle repairman.

6.  On 20 March 1969, the applicant was promoted to specialist four, pay 
grade E-4.

7.  On 15 May 1969, the applicant departed Germany for assignment in the Republic of Vietnam.  There is no evidence showing he went to the Republic of Vietnam.

8.  Records show the applicant was absent without leave (AWOL) from 
18 August 1969 to 6 October 1969.  He was assigned to the Special Processing Company, Fort Leonard Wood, Missouri, effective 7 October 1969.

9.  The applicant was also AWOL from 20 October 1969 through 25 March 1970.

10.  On 16 April 1970, the applicant received legal counseling and waived consideration of his case by a board of officers, waived a personal appearance, waived representation by counsel, and declined to submit a statement in his own behalf.

11.  The applicant was AWOL from 27 April 1970 to 10 May 1970.

12.  On an unknown date the applicant’s unit commander initiated separation action under the provisions of Army Regulation 635-212 for unfitness due to repeated and lengthy periods of AWOL.  The commander requested that further counseling and rehabilitation be waived.  On an unknown date, the appropriate authority approved the separation action and directed issuance of an Undesirable Discharge Certificate.  

13.  On 13 May 1970, the applicant was discharged accordingly.  He had completed a total of 1 year, 10 months, and 13 days of creditable active service and he had 221 days lost due to being AWOL.

14.  On 23 February 1973, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that he had been properly discharged and denied his request.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for 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 Certificate was normally considered appropriate.

16.  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.  The applicant contends that his discharge should be upgraded because he was a kid when he enlisted and did not know what he wanted in life.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.  

3.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The Board notes the applicant was 17 years of age, had satisfactory completed training, and had served over 21 months.  He had also attained the rank of specialist four, pay grade E-4, before any negative incidents were documented.  This satisfactory performance shows he was neither too young nor immature to honorably complete his service obligation.

4.  Based on the applicant's record of AWOL, his service clearly does not meet the standards of acceptable conduct for Army personnel.  This lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.
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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090005335



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ABCMR Record of Proceedings (cont)                                         AR20090005335



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