IN THE CASE OF:	  

		BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090006087 


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 honorable.

2.  The applicant states that he was going to be stationed in Hawaii and his wife would not go with him.  He contends that he would have had to leave his wife and newborn child.

3.  The applicant provides no documentary evidence 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 enlisted in the Enlisted Reserve Corps (ERC) on 21 September 1955 for a period of 6 years.  He entered active duty on 10 October 1955.  He successfully completed basic combat training and advanced individual training in military occupational specialty (MOS) 640.00 (light truck driver).  On 16 August 1957, he was honorably discharged from the ERC for immediate enlistment in the Regular Army.  He enlisted in the Regular Army on 17 August 1957 for a period of 3 years.  On 9 June 1960, he was honorably discharged for immediate reenlistment.  On 10 June 1960, he reenlisted for a period of 6 years.         

3.  On 20 April 1961, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 15 August 1960 to 4 April 1961.  He was sentenced to be confined at hard labor for 6 months, to forfeit $40 pay per month for 6 months, and to be reduced to E-1.  On 29 April 1961, the convening authority approved the sentence. 

4.  On 17 April 1961, the applicant was notified of his pending separation under the provisions of Army Regulation 635-208 for unfitness.  He waived his opportunity to consult with counsel and waived consideration of his case by a board of officers.  He also elected not to make a statement in his own behalf.    

5.  On 3 May 1961, the applicant’s unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 
635-208 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He cited that the applicant had one incident of AWOL for 233 days, one drop from the rolls as a deserter, one period of confinement, two reductions for inefficiency, and one special court-martial conviction.     

6.  On 9 May 1961, the separation authority approved the recommendation for separation and directed that he be issued an undesirable discharge.   

7.  On 23 May 1961, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-208 for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served a total of 4 years, 10 months, and 6 days of creditable active service with 281 days of lost time due to AWOL and confinement.  

8.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  Section II of the regulation provided, in pertinent part, for the separation of personnel for frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate. 

10.  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.  

11.  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's contention was noted.  However, there is no evidence of record which shows he sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to going AWOL.

2.  Since the applicant’s record of service included one special court-martial conviction and 281 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 









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)                                         AR20090006087





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ABCMR Record of Proceedings (cont)                                         AR20090006087



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