IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090020854 


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 honorable or at least to general under honorable conditions.

2.  The applicant states he was told by the recruiter that he had passed his general education development tests when he had really failed.  This resulted in being sent to military training that was academically beyond him.  He was sent for military service that was not what he wanted to do.  He contends this was a big mix-up.  He only received partial pay in the amount of $10.00 per month for many months and he was unable to help his wife and infant child with the financial difficulties at home from 3,000 miles away.  He was denied hardship leave several times.  After many months of being bumped from attending advanced individual training (AIT) by National Guard Soldiers, he took unauthorized leave to go home to care for his family.  He knew he made a mistake by leaving without authorization and returned to rectify his situation and attempt to resolve his pay and records problems.  He was placed in the stockade to await trial, at which time he requested assistance from his Congresswoman.

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 28 February 1969, the applicant enlisted in the Regular Army for 3 years.  He completed basic combat training and was enrolled in AIT for military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).

3.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he arrived at Fort Lee, Virginia, on 19 May 1969 for training in MOS 76P.  It also shows his conduct and efficiency were "excellent" and that on 13 June 1969 he was reassigned for further duty.  Item    5 (Military Education) of this same form shows the applicant was enrolled in the 5-week Stock Control and Accounting Specialist course, but it does not indicate completion.

4.  On 21 August 1969, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 11 July 1969 to 18 August 1969.  The punishment included reduction to pay grade E-1 and a forfeiture of $19.00 pay per month for 1 month.

5.  Item 44 (Time Lost) of the applicant's DA Form 20 shows he was also AWOL:

	a.  from 1 October 1969 to 1 November 1969;

	b.  from 8 November 1969 to 14 December 1969;

	c.  from 19 January 1970 to 5 February 1970; and

	d.  from 20 to 23 February 1970.

6.  On 26 February 1970, the applicant was placed in pre-trial confinement.

7.  On 24 March 1970, the applicant was convicted by a summary court-martial of AWOL (four specifications).  His sentence included confinement at hard labor for 4 months (3 months suspended) and forfeiture of $50.00 pay per month for 2 months.

8.  He escaped from confinement on 2 April 1970 and remained absent until 27 April 1970, when he was again placed in confinement.

9.  On 5 June 1970, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness due to shirking his duties by being AWOL.  The commander stated the applicant had accumulated 11 days of AWOL and 72 days of confinement.  He received one special court-martial and one nonjudicial punishment [record not available].

10.  On 8 June 1970, the applicant consulted with counsel, elected not to make a statement in his own behalf, and waived representation by counsel.

11.  On 17 June 1970, the appropriate authority approved the recommendation for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).

12.  On 1 July 1970, the applicant was accordingly discharged under other than honorable conditions.  He had completed 9 months and 14 days of creditable active duty service and had 203 days of lost time due to AWOL and confinement.
 
13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(4) provided that members who shirked their duties in the form of AWOL were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

16.  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 his undesirable discharge should be upgraded to honorable or at least to general under honorable conditions because he was not academically qualified for his MOS training.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons were appropriate considering all of the facts of the case.

4.  There is no available evidence showing that his repetitive AWOL's were the direct result of any lack of academic ability.

5.  Based on the applicant's record of AWOL, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This lost time renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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 the aforementioned requirement.

7.  In view of the above, the applicant's request should not be granted.

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)                                         AR20090020854



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ABCMR Record of Proceedings (cont)                                         AR20090020854



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