BOARD DATE:	  9 September 2009

		DOCKET NUMBER:  AR20090008321 


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 a more favorable discharge. 

2.  The applicant provides no explanation with his request. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and two third-party letters of support 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 Regular Army (RA) in St. Louis, MO on 29 December 1967 for a period of 3 years.  He was transferred to Fort Leonard Wood, MO to undergo his basic training.

3.  On 30 March 1968, the applicant was convicted by a summary court-martial for being absent without leave (AWOL) from 18 February to 4 March 1968, for breaking restriction on 17 March 1968, and for being AWOL from 17 March to 18 March 1968.  He was sentenced to confinement for 1 month and a forfeiture of pay.

4.  On 19 August 1968, he was convicted by a special court-martial for being AWOL from 28 April to 30 July 1968.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

5.  On 13 February 1969, he was convicted by a special court-martial for being AWOL from 17 December 1968 to 27 January 1969.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

6.  On 5 June 1969, he was convicted by a special court-martial for being AWOL from 18 April to 2 May 1969.  He was sentenced to confinement at hard labor for 2 months. 

7.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records.  However, his records do contain a duly-constituted DD Form 214 which shows that the applicant was discharged on 5 December 1969 with an undesirable discharge, characterized as under other than honorable conditions, under the provisions of Army Regulation
635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness due to his involvement in frequent incidents of a discreditable nature with civil and military authorities.  He was still in a trainee status and had
6 months and 1 days of total active service with 524 days of lost time due to AWOL and confinement.

8.  On 16 June 1975, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB denied his request on 20 February 1976.

9.  On 9 January 1978, the ADRB reviewed the applicant's discharge under the Special Discharge Review Program (SDRP) and determined that his discharge did not meet the qualifications for an upgrade under that program.

10.  The applicant again applied to the ADRB for an upgrade of his discharge and was granted a personal appearance before the ADRB traveling panel in St. Louis on 26 April 1979.  After reviewing the available evidence and testimony from the applicant, the ADRB again denied his request for an upgrade of his discharge.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil and/or military authorities, established pattern for shirking, established pattern of failure to pay just debts, drug addiction, failure to support dependents and lewd or indecent acts were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  In the absence of evidence to the contrary, it must be presumed that 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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s supporting documents have been noted by the Board; however, they are also not sufficiently mitigating to warrant relief when compared to his repeated misconduct and his otherwise undistinguished record of service during such a short period of time.

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.



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)                                         AR20090008321



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ABCMR Record of Proceedings (cont)                                         AR20090008321



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