IN THE CASE OF:	  

		BOARD DATE:		  24 November 2009   

		DOCKET NUMBER:  AR20090008717 


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, an upgrade of his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that his wife was out running around and that he went absent without leave (AWOL) to care for his two children.

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's records show he was inducted into the Army of the United States and he entered active duty on 14 November 1967.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 76Y (Supply Specialist).  He was honorably discharged on 23 January 1969 for the purpose of immediate enlistment in the Regular Army (RA).  He executed a 6-year enlistment on 24 January 1969.

3.  On 28 April 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the period on or about 25 April 1969 to on or about 25 April1969.  His punishment consisted of restriction and extra duty for 14 days and a forfeiture of $20.00 per month for one pay.

4.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was reported in an AWOL status from 22 February 1970 through 18 May 1970 and 17 July 1970 through 26 August 1970.  He was also reported as dropped from the rolls (DFR) of the Army on 27 August 1970 and he was returned to duty on 26 October 1970.

5.  On 29 October 1970, the applicant's immediate commander notified the applicant of his intent to initiate elimination from the service action against him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness.  The notification memorandum is not available for review with this case.

6.  On 2 November 1970, the applicant acknowledged receipt of the separation memorandum, he consulted with legal counsel, and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under other than honorable conditions was issued to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf.




7.  On 10 November 1970, the applicant's immediate commander initiated separation action against the applicant in accordance with Army Regulation   
635-212, by reason of unfitness.  The immediate commander remarked that the discharge was recommended because of the severe nature of the applicant's psychiatric evaluation, excessive time lost in the service, resistance to authority and regulation, and a pattern of behavior which rendered him a complete loss to the Army.  He also remarked that further counseling and rehabilitation efforts were considered inappropriate.  He recommended issuance of an undesirable discharge.

8.  On 13 November 1970, the applicant's intermediate commander concurred with the recommendation for discharge and he also recommended an undesirable discharge.  He also remarked that the statement submitted by the applicant indicated he was agreeable to accepting a discharge under other than honorable conditions.

9.  On 18 November 1970, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the he be furnished an Undesirable Discharge Certificate. On 1 December 1970, the applicant was accordingly discharged from the Army.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time of his discharge confirms he was discharged with an undesirable discharge, characterized as under conditions other than honorable.  This form further confirms that he completed 2 years,
6 months, and 11 days of total active service.

10.  On 28 April 1972, the Army Discharge Review Board (ADRB) denied he applicant’s petition for an upgrade of his discharge.

11.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.




12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy 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.  The applicant contends that his undesirable discharge should be upgraded to a general, under honorable conditions discharge.

2.  The evidence of record shows that the applicant had a history of AWOL/DFR on various occasions throughout his military service.  Accordingly, his chain of command initiated elimination action against him.  His discharge was in accordance with applicable regulation and all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is no basis for granting the applicant's requested relief for a general, under honorable conditions 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)                                         AR20090008717



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ABCMR Record of Proceedings (cont)                                         AR20090008717



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