IN THE CASE OF:	  

		BOARD DATE:	    23 March 2010

		DOCKET NUMBER:  AR20090016811 


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 an upgrade of his discharge from undesirable to general under honorable conditions.

2.  The applicant states the following:

* Army officials were trying to send him back overseas
* he had to help his single mother keep up the farm
* he requested to be stationed at Fort Knox and was denied
* he did not realize he would not have any medical benefits after discharge
* the only choice he had was to go home to help his mother
* he needs help for his medical needs
* his post-service conduct has been good and he has been a good person

3.  The applicant provides a self-authored letter dated 10 September 2009.

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 Army for 3 years on 18 July 1963 and he completed training in field artillery basic.  He was transferred to Germany on 5 December 1963.

3.  The applicant's records contain special court-martial convictions for being:

* absent without leave (AWOL) from 3 February 1965 to 4 March 1965
* AWOL from 30 July 1964 to 3 August 1964 and 4 August 1964 to 18 September 1964
* AWOL from 3 February 1965 to 4 March 1965

4.  His special court-martial sentences consisted of confinements without hard labor, reductions in pay grade, and forfeitures of pay.

5.  Contained in the applicant's official record is a copy of an undated letter he wrote to the President requesting his assistance in obtaining a hardship discharge due to his mother's health problems.

6.  The DA Deputy Chief of Staff for Personnel responded to the applicant's letter on 15 February 1965.  He was told that the authority had been delegated to the commanders in the field to take final action in similar cases.  He was also told that his letter was being forwarded to the Commanding General, Fort Knox, Kentucky, for consideration and appropriate action.  There is no other correspondence in his record pertaining to this issue.

7.  On 14 April 1965, the applicant was notified he was being recommended for discharge under Army Regulation 635-208 (Personnel Separation - Discharge - Unfitness) for unfitness.  He acknowledged receipt of the notification and he initialed that he understood the following:

* his separation from the Army may be other than honorable
* he may be deprived of any rights and benefits as a veteran both under Federal and State laws
* he may encounter substantial prejudice in civilian life

8.  The applicant submitted a waiver of his rights on 14 April 1965.

9.  The appropriate authority approved the recommendation for discharge on 19 April 1965 and he directed the issuance of an Undesirable Discharge Certificate.

10.  On 24 April 1965, the applicant was discharged under Army Regulation 
635-208 for unfitness.  He completed 1 year, 6 months, and 14 days of net active service and he was furnished an Undesirable Discharge Certificate.

11.  On 27 November 1973, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge from undesirable to honorable.

12.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness.  The regulation stated that individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined that an individual's military record was characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts.

13.  Paragraph 3-7b of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) 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 contentions were considered and are not supported by the available evidence.

2.  The records show he was convicted by a special court-martial on three occasions for being AWOL.  Although his record contains a letter showing he wrote to the President requesting a hardship discharge, he wrote the letter after being AWOL.  He was not furnished a hardship discharge and he continued to be AWOL.

3.  The applicant states he was not aware he would be without medical benefits after discharge.  But he acknowledged receipt of his notification for discharge and he initialed that he understood he may be deprived of any rights and benefits as a Veteran both under Federal and State laws.

4.  The applicant provides no documentation to support his contentions regarding post-service conduct.  There is no basis for granting 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)                                         AR20090016811



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ABCMR Record of Proceedings (cont)                                         AR20090016811



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