IN THE CASE OF:	 

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090014029 


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 under other than honorable conditions discharge.

2.  The applicant states that he has lost his discharge certificate and that all he needs is a discharge certificate to put on the wall.  He also needs proof of his military service for personal records and would like to have a better discharge if possible.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 19 July 1968, 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 entered active duty in Roanoke, VA, on 9 December 1965.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11H (Infantry Direct Fire Crewmember).  The highest rank/grade he attained during his military service was private first class/
E-3.

3.  The applicant's records show he was awarded the National Defense Service Medal.

4.  On 5 July 1966, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) during the period from on or about 5 July 1966 through on or about 7 July 1966.  His punishment consisted of a forfeiture of $10.00 pay, 14 days of restriction, and 14 days of extra duty.

5.  On 25 August 1966, the applicant departed Fort Eustis, VA, in an AWOL status and was subsequently dropped from the rolls on 27 October 1966.  He was arrested by civil authorities on 28 October 1966 and was placed in confinement.  He was released back to military control at Fort Belvoir, VA, on 30 October 1966.

6.  On 3 February 1967, the applicant departed his Fort Belvoir, VA in an AWOL status and was again dropped from the Army rolls.  He returned to military control on 28 March 1968.

7.  On 7 May 1968, the applicant pled guilty at a special court-martial to one specification of being AWOL during the period on or about 3 February 1967 through on or about 28 March 1968.  The court sentenced him to a reduction to private/E-1 and confinement at hard labor for 6 months.  The sentence was adjudged on 7 May 1968 and was approved on 15 May 1968.

8.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his records contain a copy of a memorandum issued by an assistant adjutant general, U.S. Army Engineer Center Brigade, Fort Belvoir, VA, on 12 July 1968 which shows the commanding general had approved the applicant's separation from the service with an Undesirable Discharge Certificate under the provisions of paragraph 45b of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct).

9.  The applicant's records also contain a properly-constituted DD Form 214 that shows he was discharged on 19 July 1968 under the provisions of Army Regulation 635-206 by reason of unfitness with an under other than honorable conditions character of service and was issued an Undesirable Discharge Certificate.  This form also shows the applicant completed 11 months and 4 days of creditable active service and had 383 days of lost time and that his separation program number (SPN) was 282 (prolonged absence of more than 1 year).

10.  There is no indication in the applicant's records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

11.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Section VII, paragraph 
45b, contained the policy and outlined the procedures for separating individuals for desertion or unauthorized absence continued for more than 1 year.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Personnel Separations) provides the policies and procedures 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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's record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 19 July 1968 under the provisions Army Regulation 635-206 by reason of unfitness for desertion or unauthorized absence continued for more than 1 year.  The applicant's record reveals a disciplinary history which includes one instance of NJP, multiple instances of AWOL, one instance of a special court-martial, and at least one instance of confinement.


2.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that 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.  His misconduct also renders his service unsatisfactory.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20090014029



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ABCMR Record of Proceedings (cont)                                         AR20090014029



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