IN THE CASE OF:	  

		BOARD DATE:		  24 November 2009   

		DOCKET NUMBER:  AR20090011165 


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, that his general discharge under the provisions of the Special Discharge Review Program (SDRP) be upgraded to honorable.

2.  The applicant states that he feels his discharge should be changed to honorable.

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 Regular Army on 22 August 1969 for a period of 2 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (light weapons infantryman).

3.  On 3 December 1970, the applicant was convicted contrary to his plea by a special court-martial of being absent without leave (AWOL) from 10 August 1970 to 19 November 1970.  He was sentenced to be confined at hard labor for 4 months and to forfeit $50.00 pay per month for 4 months.  On 4 December 1970, the convening authority approved the sentence.  On 11 December 1970, the unexecuted portion of the sentence to confinement at hard labor was remitted.

4.  On 14 May 1971, the applicant was convicted by a special court-martial of being AWOL from 12 January 1971 to 29 April 1971.  He was sentenced to be confined at hard labor for 5 months and to forfeit $60.00 pay per month for 6 months.  On 18 May 1971, the convening authority approved the sentence.

5.  On 2 June 1971, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.  On 7 June 1971, after consulting with counsel, the applicant waived consideration of his case by a board of officers, waived a personal appearance, and waived representation by counsel.  He also elected not to submit a statement on his own behalf.

6.  On 8 June 1971, the applicant's unit commander recommended the applicant be discharged from the service under the provisions of Army Regulation 635-212, paragraph 6a, for unfitness due to shirking.  He cited the applicant's two special courts-martial, 299 days of lost time due to AWOL and confinement, dislike for the military service, lack of self-motivation, and negative attitude toward the military.

7.  On 18 June 1971, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.

8.  The applicant was discharged on 24 June 1971 with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to an established pattern for shirking.  He had served 1 year and 1 day of creditable active service with 302 days lost due to AWOL and confinement.

9.  On 25 July 1977, the applicant's records were reviewed under the provisions of the SDRP and a general discharge was directed following review under the provisions of Public Law 95-126.  On 6 September 1978, the Army Discharge Review Board (ADRB) reviewed the applicant's case as required by Public Law 95-126 and did not affirm his SDRP discharge upgrade (a general discharge).

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(4) of the regulation provided that members involved in an established pattern of shirking were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

11.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation in 1971 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

2.  On 25 July 1977, the applicant's undesirable discharge was upgraded to a general discharge under the SDRP.  On 6 September 1978, the general discharge was not affirmed under the provision of Public Law 95-126.

3.  The applicant's record of service included two special court-martial convictions and 302 days of lost time.  As a result, his record of service 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 upgrade.

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)                                         AR20090011165



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ABCMR Record of Proceedings (cont)                                         AR20090011165



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