IN THE CASE OF:	

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090017729 


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, upgrade of his undesirable discharge.

2.  The applicant states he feels he received this type of discharge because all the facts were not known.  His girlfriend and 1-year old son were burned by a hot water heater.  His son was burned on the side of his face and chest.  He was desperate and left.  He contends that he is guilty of leaving because of his ignorance and age at the time and he felt that he could best take care of them if he was there.  The applicant believes that if it were not for these circumstances, he would have met his military obligations.  He tried to explain what happened to his superiors but he was ignored and dismissed.

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 13 March 1968, the applicant was inducted into the Army of the United States for 2 years.  At the time he was 20 years, 2 months, and 17 days of age.  He had only completed 9 years of civilian education.

3.  On 3 September 1968, the applicant was convicted by special court-martial of being AWOL from 27 May to 25 August 1968.  His sentence consisted of a forfeiture of $68.00 pay per month for 6 months and confinement at hard labor for 6 months.

4.  On 24 April 1969, the applicant was convicted by special court-martial of being absent without leave (AWOL) from 24 February to 9 April 1969.  His sentence consisted of a forfeiture of $70.00 pay per month for 2 months and confinement at hard labor for 2 months.

5.  On 12 August 1969, the applicant was convicted by special court-martial of being AWOL from 7 May to 24 July 1969.  His sentence consisted of a forfeiture of $80.00 pay per month for 6 months and confinement at hard labor for 
6 months.

6.  On 28 August 1969, the commander notified the applicant of his intent to separate him from the military under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for unfitness due to frequent incidents of a discreditable nature with military authorities.

7.  On 28 August 1969, the applicant consulted with legal counsel and waived consideration of his case by a board of officers.  He waived a personal appearance haring and representation by counsel.  He did not submit a statement in his own behalf.

8.  On 28 August 1969, the applicant’s unit commander initiated separation action under the provisions of Army Regulation 635-212 for unfitness.  The basis for this recommendation was the applicant's two special courts-martial, his complete lack of regard for Army regulations, and his habitual acts of a discreditable nature.



9.  On 19 September 1969, the appropriate authority approved the separation action and directed the issuance of an Undesirable Discharge Certificate.  On
29 September 1969, the applicant was discharged accordingly.  He had completed 8 months and 10 days of creditable active service and he had 167 days of time lost due to AWOL and confinement.

10.  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.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Paragraph 6a(1) of this 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.

12.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures for the separation of enlisted personnel.  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 because he was ignorant and a young age at the time, his undesirable discharge should be upgraded.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.

3.  Based on his record of repeated AWOL offenses, 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.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was over 20 years of age at the time of his induction.

5.  There is no available evidence of record showing that his lack of a high school education meant he was ignorant or that this was the proximate cause of his repeated AWOL offenses.

6.  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.

7.  In view of the above, 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)                                         AR20090017729



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ABCMR Record of Proceedings (cont)                                         AR20090017729



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