IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090011609 


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 either a general, under honorable conditions or an honorable discharge.

2.  The applicant does not make any further statements.

3.  The applicant provides an unsigned statement from his niece, dated 19 June 2009; a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 23 January 1969; and a copy of his birth certificate, dated (issued) 6 April 2009, in support of his request.

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 15 November 1966.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 13A (Field Artilleryman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

4.  On 4 May 1967, the applicant departed his Oakland, CA unit in an absent without leave (AWOL) status and he was dropped from the rolls of the Army as a deserter on 3 November 1967.  He was apprehended on 29 December 1967 and he was returned military control at Hunter, AR on 4 January 1968.  He was subsequently attached to the Special Processing Detachment, Headquarters Battalion, U.S. Army Artillery and Missile Center, Fort Sill, OK, for disposition of his AWOL offense.

5.  On 16 February 1968, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 4 May 1967 to on or about 29 December 1967.  The Court sentenced him to confinement at hard labor for 4 months and a forfeiture of $40.00 pay per month for 4 months.  The sentence was adjudged on 16 February 1968.  However, on 21 February 1968, the convening authority approved the sentence, but suspended the execution of confinement at hard for a period of four months.

6.  On 27 February 1968, the applicant departed his Fort Sill unit in an AWOL status and he was again subsequently dropped from the rolls of the Army.  He was apprehended and returned to military control at Hunter, AR on 21 May 1968. He was further assigned to the Special Processing Detachment at Fort Polk, LA, for disposition of this AWOL offense.

7.  On 28 May 1968, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 27 February 1968 to on or about 19 May 1968.  The Court sentenced him to confinement at hard labor for 6 months and a forfeiture of $68.00 pay per month for 6 months.  The sentence was adjudged and it was approved on 28 May 1968.

8.  On 25 June 1968, the unexecuted portion of the applicant's sentence pertaining to confinement at hard labor for 6 months was suspended for a period of six months.

9.  On 13 July 1968, the applicant departed his Fort Sill, OK, unit in an AWOL status and he was subsequently dropped from the Army rolls on 10 September 1968.  He was apprehended and returned to military control at Hunter, AR and further assigned to the Special Processing Detachment, Fort Polk, LA, on
4 December 1968.

10.  On 12 December 1968, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 13 July 1968 to on or about 4 December 1968.  The Court sentenced him to confinement at hard labor for 6 months and a forfeiture of $73.00 pay per month for 6 months.  The sentence was adjudged and it was approved on 12 December 1968.

11.  On 6 January 1969, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Unfitness and Unsuitability) by reason of unfitness citing the applicant’s continuous disciplinary problems, AWOL, negative attitude, and habitual misconduct. 

12.  On 6 January 1969, 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, under honorable conditions discharge was issued to him, that he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he 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 he declined to make a statement in his own behalf.

13.  On 6 January 1969, the applicant's immediate commander initiated separation action against the applicant under the provisions of Army Regulation 635-212 by reason of unfitness.   The immediate commander added that the undesirable discharge was recommended because of the applicant's previous 3 periods of AWOL totaling a very lengthy time of 465 days, three instances of courts-martial, and his complete lack of motivation for rehabilitation.  He further recommended approval of the applicant's discharge with an Undesirable Discharge Certificate.

14.  On 7 January 1969, the applicant's senior commander recommended approval of the applicant's discharge for unfitness and the issuance of an Undesirable Discharge Certificate.

15.  On 13 January 1969, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  He also directed that the applicant be reduced to the lowest enlisted grade.  Accordingly, on 23 January 1969, the applicant was discharged from the Army.  The DD Form 214 he was issued at the time of his discharge confirms he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further confirms that he completed a total of 8 months and 1 day of creditable active military service and he had 557 days of lost time.

16.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  The applicant submitted a statement, dated 19 June 2009, from his niece in which she states that since his discharge from the Army, her uncle had been a good person and has not been in trouble with the law.  She adds that as shown on his birth certificate, his parents were elderly at the time he was drafted and it was very overwhelming for him to leave his parents.  He is currently not in good health, still unmarried, and in need of help.

18.  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:

   a.  frequent incidents of a discreditable nature with civil or military authorities; 
   
   b.  sexual perversion; 
   
   c.  drug addiction; 
   
   d.  an established pattern of shirking; and/or 
   
   e.  an established pattern showing dishonorable failure to pay just debts.

19.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

20.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

21.  Army Regulation 635-200, 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.

2.  The applicant’s records reveal a history of indiscipline and/or misconduct including three instances of courts-martial and an extensive history of AWOL and desertion.  Accordingly, his chain of command initiated separation action against him.  The applicant's discharge was in accordance with applicable regulation, 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.  The applicant's current health problems are regrettable and his present need for help is noted; however, the ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.

4.  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, the applicant is not entitled to a general or an honorable 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)                                         AR20090011609



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ABCMR Record of Proceedings (cont)                                         AR20090011609



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