BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090019449 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states he wants his discharge upgraded to receive medical assistance from the Department of Veterans Affairs (VA).

3.  The applicant provides no additional documents 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 on 21 August 1968 for a period of 3 years.

3.  On four separate occasions between June 1969 and March 1971, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for the following offenses:

* absent without leave (AWOL) from 26 May 1969 to 27 May 1969
* failing to go to his appointed place of duty (two specifications)
* absent from his unit
* disobeying a lawful command from his superior noncommissioned officer

4.  On 1 July 1970, 30 December 1970, and 21 April 1971, the applicant was convicted by summary courts-martial for the following offenses:

	a.  AWOL from 15 May 1970 to 20 May 1970 – reduction to private/E-1 (suspended for 6 months), forfeiture of $55.00 pay for 1 month, extra duty for 14 days, and restriction for 14 days;

	b.  failing to go to appointed place of duty (two specifications) and failing to obey a lawful order issued by his commanding officer – forfeiture of two-thirds of his pay for 1 month and confinement at hard labor for 30 days (suspended for 30 days); and

	c.  falsely sign an official record – reduction to E-1 and forfeiture of $95.00 pay for 1 month.

5.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration of Term of Service) of his DA Form 20 (Enlisted Qualification Record) shows the applicant was in an AWOL status during the following periods (no record of court-martial or Article 15 for these periods of AWOL):

* 4 October 1969 to 5 October 1969
* 19 April 1971 to 20 April 1971
* 7 May 1971 to 10 May 1971
* 27 August 1971 to 1 September 1971
* 7 September 1971 to 8 September 1971

6.  The applicant's discharge packet is not available for review.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he was discharged on 5 October 1971 under the provisions of Army Regulation 
635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness – frequent incidents of a discreditable nature with civil or military authorities.

7.  His DD Form 214 shows he was issued an Undesirable Discharge Certificate.  He completed 3 years and 24 days of creditable active service with 22 days of lost time.

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

9.  Army Regulation 635-212, in effect at the time, set forth the authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 
6a(1) provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 sets for the basic authority 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 requests his discharge be upgraded to receive medical assistance from the VA.  However, this issue is not sufficiently mitigating to warrant an upgrade of his discharge.

2.  In the absence of evidence to the contrary, the applicant's discharge processing is presumed to have been administratively correct and in conformance with applicable regulations.

3.  The applicant's service record shows he received four Articles 15 and three summary courts-martial for various offenses.  The evidence of record shows he was AWOL for a total of 22 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  There is no evidence available which shows the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to a general discharge.



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)                                         AR20090019449



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ABCMR Record of Proceedings (cont)                                         AR20090019449



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