IN THE CASE OF:
BOARD DATE: 8 July 2010
DOCKET NUMBER: AR20090021115
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 upgrade of his undesirable discharge (UD) to a general discharge (GD).
2. The applicant states he was given two choices back in 1962--go back to his unit and the same commander as a private, or take a UD and go home in one week. He was told he could apply for a GD after 6 months.
3. The applicant states he was a good Soldier for over two years and he was training other Soldiers and officers in artillery target acquisition skills. His new commander was out to prove a point at his expense.
4. The applicant provides no additional documentation.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's service records are limited, but are considered sufficient to conduct a fair and impartial review of this case. They show:
* He enlisted in the Regular Army for 3 years on 24 August 1959 with parental consent
* He was trained in military occupational specialty (MOS) 154 (Artillery Flash Range Crewman)
* He was assigned to Battery B, 3rd Target Acquisition Battalion,
26th Artillery, Fort Sill, OK
* He had periods of absence without leave (AWOL) from 20 November 1961 through 5 December 1961 and 22 December 1961 through 7 January 1962
* He was convicted of his first period of AWOL by a summary court-martial on 16 December 1961
3. On an unknown date following his second period of AWOL, the applicant's commander initiated separation action against him for unfitness under the provisions of Army Regulation 635-208 (Personnel Separations-Discharge-Unfitness). The separation action was approved and the applicant was discharged with a UD on 19 February 1962. His DD Form 214 shows:
* He had 2 years, 4 months, and 23 days of creditable service
* He had 33 days of lost time due to two periods of AWOL
* His authority for discharge was Army Regulation 635-208
4. Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness. Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed. Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking. A UD was normally considered appropriate.
5. Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel. Paragraph 3-7b provides that a GD 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests upgrade of his UD to a GD.
2. The applicant's records show he had two periods of AWOL totaling 33 days. He was punished by a summary court-martial following his first period of AWOL, but his behavior did not improve. Instead, he went AWOL a second time and his commander initiated discharge proceedings.
3. The applicant's repeat AWOL after being convicted by a summary court-martial for the same offense caused his commander to initiate separation action. The administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reason cited for discharge were appropriate considering all the facts of the case.
4. 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.
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) AR20090021115
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ABCMR Record of Proceedings (cont) AR20090021115
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