IN THE CASE OF:	

		BOARD DATE:	  9 March 2010

		DOCKET NUMBER:  AR20090016655 


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 that his undesirable discharge be upgraded to an honorable discharge.  

2.  The applicant states he is trying to receive Department of Veterans Affairs (VA) medical care.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 (RA) on 21 April 1969.  He was assigned to Fort Knox, KY for basic combat training.  

3.  On 8 August 1969, the applicant was convicted pursuant to his plea by a special court-marital of being absent without leave (AWOL) from 8 July to 27 July 1969.  He was sentenced to a forfeiture of $50.00 pay for 3 months, restriction to the limits of Fort Knox for 45 days, and hard labor without confinement for
45 days.  

4.  His DA Form 20 (Enlisted Qualification Record) shows he was confined by military authorities on 28 July 1969.  

5.  On 12 November 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 24 September 1969 to 2 November 1969.

6.  His DA Form 20 also shows he was also AWOL during the following periods:  28 November to 3 December 1969; 9 December to 19 December 1969; and 
1 January to 4 January 1970.  There is no evidence which shows he received any disciplinary actions as a result of these periods of AWOL.  

7.  The applicant's discharge packet is also not available for review.  However, his DD Form 214 shows he was discharged on 16 April 1970 under the 
provisions of Army Regulation 635-206 (Personnel Separations - Discharge -Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), section V by reason of misconduct - fraudulent entry into the Army (separation program number of 280) with an undesirable discharge.  He completed 9 months and 6 days of creditable active service and he had 81 days of lost time due to being AWOL.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.  

9.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  This regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ is death or confinement in excess of
1 year.  

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority 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.

11.  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 he desires to have his undesirable discharge upgraded to an honorable so that he may be eligible to receive medical care through the VA.  However, this issue is not sufficiently mitigating to warrant relief in this case.  

2.  The applicant’s service record shows he was convicted by a special court-martial and received one Article 15.  In addition, his DA Form 20 shows he was AWOL on three separate periods and was confined by military authorities for 
1 day.  As a result, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either an honorable or a general discharge.

3.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed the issuance of an undesirable discharge based on the applicant’s overall record of service and that the separation action was processed in accordance with the governing regulation.

4.  There was no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.  Therefore, 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)                                         AR20090016655



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016655



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1