IN THE CASE OF:	

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090010494 


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.

2.  The applicant states, in effect, that he believes that his discharge should be upgraded. 

3.  The applicant provides no additional documents with 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 Oklahoma Army National Guard (OKARNG) on 21 December 1962 for a period of 3 years and served until he was honorably discharged on 17 March 1964 to enlist in the Regular Army.

3.  He enlisted in the Regular Army on 18 March 1964 for a period of 3 years and training in field artillery weapons.  He completed his basic training at Fort Polk, Louisiana and was transferred to Fort Sill, Oklahoma to undergo his advanced individual training (AIT) as a cannoneer. 

4.  On 30 November 1964, he was convicted by a special court-martial of being absent without leave (AWOL) from 21 July to 12 November 1964.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay. 

5.  He completed his AIT and remained assigned to a unit at Fort Sill until he was transferred to Vietnam with his unit on 4 October 1965.  

6.  On 8 November 1965, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from a superior commissioned officer.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

7.  On 14 August 1966, NJP was imposed against him for disobeying a lawful order from his commander.  His punishment consisted of a reduction in grade, a forfeiture of pay, extra duty and restriction.

8.  On 5 September 1966, NJP was imposed against him for disobeying a lawful order from his commander.  His punishment consisted of a reduction in grade, a forfeiture of pay, extra duty and restriction.

9.  The applicant’s commander also initiated action to bar the applicant from reenlistment based on his habitual misconduct as evidenced by his disciplinary record.  The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment. 

10.  On 1 October 1966, he was convicted by a summary court-martial of two specifications of failure to go to his place of duty.  He was sentenced to a reduction in grade and a forfeiture of pay.

11.  On 20 November 1966, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and extra duty.

12.  The applicant departed Vietnam on 3 December 1966 and was transferred to Germany on 19 January 1967.

13.  On 5 May 1967, he was convicted by a special court-martial of resisting lawful apprehension by the military police and escaping lawful custody of the military police.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

14.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contain a copy of his discharge orders which indicate he was being discharged as a result of approved elimination board action and he was to be issued an Undesirable Discharge Certificate.

15.  Additionally, his records contain a duly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) authenticated by the applicant which shows that he was discharged under other than honorable conditions on 28 December 1967, under the provisions of Army Regulation    635-212 for unfitness due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He had served 2 years, 9 months, and 16 days of total active service during his enlistment and had 359 days of lost time due to AWOL and confinement.

16.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, that members who established a pattern of shirking or who were involved in frequent incidents of a discreditable nature with civil and/or military authorities, were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

18.  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 accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.
2.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the facts of the case and his otherwise undistinguished record of service during such a short period of time.

3.  The applicant’s discharge correctly reflects his repeated misconduct throughout his service.  Accordingly, there appears no basis to warrant an upgrade of his discharge.

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)                                         AR20090010494





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ABCMR Record of Proceedings (cont)                                         AR20090010494



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