IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090013932 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states that his discharge was unjust because he was never given the opportunity to say why he left the Army and never returned.  He contends that he never had legal counsel to help him with his case.

3.  The applicant provides no additional documentation 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.  On 20 April 1966, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training to include the Basic Airborne Course.  He was awarded military occupational specialty 11B1P (Light Weapons Infantryman with parachutist qualification).

3.  On 28 September 1966, the applicant was assigned as a rifleman with A Company, 1st Battalion (Airborne), 501st Infantry Regiment, located at Fort Campbell, Kentucky.

4.  On 21 December 1966, the applicant was advanced to the rank of private first class, pay grade E-3.

5.  On 18 November 1966, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) for 1 day.  His punishment included a forfeiture of $10.00 pay and
7 days of extra duty.

6.  On 30 January 1967, the applicant was convicted by summary court-martial of failure to go at the prescribed time to his appointed place of duty.  His sentence consisted of reduction to pay grade E-2 and a forfeiture of $50.00 pay.  

7.  On 7 July 1967, the applicant was convicted by special court-martial of being AWOL from 3 February to 28 June 1967.  His sentence consisted of reduction to pay grade E-1, a forfeiture of $64.00 pay for 6 months and confinement at hard labor for 6 months.

8.  The applicant's discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 31 August 1967, under the provisions of Army Regulation 635-212, for unfitness due to frequent involvement of a discreditable nature with civil or military authorities.  He was issued an Undesirable Discharge Certificate.  He had completed 9 months and 1 day of creditable active service and he had 223 days of lost time due to being AWOL and in confinement.  

9.  There is no evidence that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An Undesirable Discharge Certificate 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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 discharge was unjust because he was never given the opportunity to say why he had left the Army and never returned.  He also contends he never had legal counsel to help him with his case.  He wants his discharge upgraded.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3. Based on his record of repeated AWOL's, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to 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.

5.  In view of the above, the applicant's request should be denied.




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)                                         AR20090013932



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ABCMR Record of Proceedings (cont)                                         AR20090013932



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