IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090009784 


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 (UD).

2.  The applicant states, in effect, that he was told his UD would be upgraded to a general discharge (GD), under honorable conditions discharge after 5 years and that his GD would later be upgraded to an honorable discharge (HD).

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 record shows he enlisted in the Regular Army (RA) and entered active duty on 31 December 1964.  He was trained in, awarded, and served in military occupational specialty (MOS) 63A (Automotive Maintenance Helper).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows, in 
Item 31 (Foreign Service), that he served in the Republic of Vietnam (RVN) from 1 December 1965 to 6 September 1966.  Item 33 (Appointments and Reductions) shows that he was promoted to the rank of private first class (PFC/E-3) on 10 April 1966 and this was the highest rank that he held while serving on active duty.  It also shows that he was reduced to the rank of private (PVT/E-1) for cause on 6 December 1966.

4.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of the applicant's DA Form 20 shows that he accrued 345 days of time lost due to being absent without leave (AWOL) on five separate occasions between 3 August 1965 and 3 May 1967.  He was also in military and civil confinement on four separate occasions between 6 December 1966 and 25 October 1967.  

5.  The applicant’s record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) twice.  He first accepted NJP on 7 June 1965, for failing to report to his appointed place of duty at the prescribed time on 7 June 1965.  He also accepted NJP on 31 August 1966, for failing to report to his appointed place of duty at the time prescribed on 31 August 1966.

6.  The applicant's record contains a message (date time group 251530Z September 1967) from the Commanding General (CG), Fort Polk, Louisiana, which indicates the applicant was released from military confinement, where he was being held due to numerous AWOL offenses, to civilian authorities for two charges of grand larceny and a burglary charge in the State of Tennessee.  He was subsequently tried, convicted, and sentenced to 6 years imprisonment in the State penitentiary.  The CG indicated that as a result of the civil conviction action would be taken to eliminate the applicant from military service.

7.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  However, the available record contains Headquarters, Fort Polk Special Orders Number 274, dated 23 October 1967, which directed that the applicant be discharged under the provisions of Army Regulation 635-206 by reason of civilian confinement with a UD effective
25 October 1967.   

8.  On 25 October 1967, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he had completed a total of 
1 year, 10 months, and 15 days of creditable active military service and that he had accrued 345 days of lost time due to being AWOL and in confinement.

9.  On 10 August 1977, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's case, voted to deny his request for an upgrade of his UD.

10.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section III of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  A UD was normally considered appropriate for members separated under this provision of the regulation.

11.  Army Regulation 635-200 governs the current policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a provides that an HD 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. 

12.  Paragraph 3-7b of the same regulation provides that a GD 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 contentions that he was told his UD would be upgraded after a specified period of time has been carefully considered.  However  there is insufficient evidence to support this claim.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in the discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  


2.  The applicant's record reveals an extensive disciplinary history that includes his acceptance of NJP on two separate occasions, accrual of 345 days of lost time due to being AWOL and in confinement, and conviction by a civil court.  As a result, the UD he received is an accurate reflection of his overall record of service.  Therefore, his record was not sufficiently meritorious to support the issuance of a GD or an HD at the time of discharge, nor does it support an upgrade of his discharge at this late date.  

3.  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)                                         AR20090009784



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ABCMR Record of Proceedings (cont)                                         AR20090009784


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