BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090015061 


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 the following:

* An upgrade of his discharge from undesirable to general
* A copy of his DD Form 214 (Report of Transfer or Discharge)
* To know his benefits under the type of discharge he received
* To know when he will receive his benefits

2.  The applicant states he is a conscientious objector and was drafted out of school.

3.  The applicant provides no additional documents.

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.  With respect to his request for a copy of his DD Form 214, he was provided this document through separate correspondence.  Therefore, this issue will not be discussed further in these Proceedings.

3.  With respect to his questions regarding benefits, these questions do not fall with the purview of this Board.  The Board's function is to correct errors and/or injustices contained in the service records of current and former service members.  He should contact the appropriate agency (Department of Veterans Affairs (DVA), Social Security Administration, State agencies, etc.) for information regarding these issues.  Therefore, these issues will not be discussed further in these Proceedings.

4.  The applicant was inducted into the Army of the United States at age 20 on
12 January 1967.  His records contain no written argument of being a conscientious objector.

5.  He had NJP (nonjudicial punishment) imposed against him on 25 February 1967 for being absent without leave (AWOL) from 9 February 1967 until
23 February 1967.  His punishment consisted of a forfeiture of $45.00 and
15 days of extra duty.

6.  On 23 February 1968, he was convicted by a special court-martial of being AWOL from 4 April 1967 until 3 February 1968.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $68.00 per month for 6 months.

7.  The applicant was notified he was being recommended for discharge under Army Regulation 635-212 (Personnel Separations - Discharge Unfitness and Unsuitability) for unfitness, due to frequent involvement of a discreditable nature with military or civil authorities.  He acknowledged receipt on 22 March 1969 and he chose not to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation on 30 March 1968 and directed the issuance of an Undesirable Discharge Certificate.

9.  On 10 April 1968, the applicant was discharged under Army Regulation 
635-212, for unfitness.  He completed 2 months and 10 days of total active service and he had approximately 342 days of lost time due to AWOL.  He received an  Undesirable Discharge Certificate.

10.  The applicant's records do not show he submitted a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its
15-year statute of limitations.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort was unlikely to succeed.  An undesirable discharge was normally considered appropriate.

12.  Paragraph 3-7b of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) states 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 his undesirable discharge should be upgraded to a general discharge.

2.  His contentions are noted; however, the evidence contained in his records shows the type of discharge he received was proper.  He had more lost time due to AWOL than actual time served.  He was convicted by a special court-martial and he had NJP imposed against him for being AWOL.  The undesirable discharge he received appropriately reflects his overall record of service.

3.  The records contain no argument by the applicant prior to his discharge of being a conscientious objector and he was over 20 years old at the time of his induction.

4.  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 has failed to submit evidence that would satisfy this requirement.

5.  Based on the foregoing, there is no basis for granting the applicant's 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)                                         AR20090015061



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ABCMR Record of Proceedings (cont)                                         AR20090015061



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