BOARD DATE:	  February 25, 2010

		DOCKET NUMBER:  AR20090021254 


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 undesirable discharge.

2.  The applicant states, in effect, his discharge should be changed to a desirable discharge due to improper family and marriage counseling.  He believes statements created by several witnesses need to be reevaluated to get a better understanding of what was happening at the time.  He states he was incapable of understanding what was going on.  He was losing his wife and having problems at home.  He was granted leave and returned 1 day late and was carried in an absent without leave (AWOL) status.  He was moved to another platoon and 6 months later transferred again.  He adds that he never received counseling for the situation at home.  He felt very frustrated, confused, and depressed and he believed he needed to be at home to mend things.  He served his country 3 years, believes he was a good Soldier, and he paid the price for his mistake while he was in confinement.  He adds that he was AWOL 120 days.  He believes in his heart that he would have carried out his remaining term as a good Soldier, if he had received adequate counseling.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a self-authored letter 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 17 May 1963, the applicant reenlisted in the Regular Army (RA) for a period of 3 years with a total of 6 years of prior active and inactive service.  He served in military occupational specialty (MOS) 111.00 (Light Weapons Infantryman).  The highest grade he attained was pay grade E-3. 

3.  On 20 May 1964, the applicant received nonjudicial punishment for being absent without leave (AWOL) from 1 April through 6 May 1964.  His imposed punishment was a reduction to pay grade E-2 and a forfeiture of $15.00 pay.

4.  On 5 October 1964, the applicant was convicted by a special court-martial (SPCM) of being AWOL from 22 August through 20 September 1964.  He was sentenced to confinement at hard labor for 6 months (suspended for 5 months), a reduction to pay grade E-1, and a forfeiture of $44.00 pay for 6 months.

5.  The facts and circumstances pertaining to the applicant's discharge are not available for review.  The applicant's DD Form 214 indicates he was discharged on 12 April 1965 under the provisions of Army Regulation 635-208 with a separation program number (SPN) of 28B [frequent involvement of a discreditable nature with authorities].  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 6 months, and 26 days of active military service during this enlistment with 120 days of lost time.

6.  On 15 March 1966, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

7.  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.

8.  Army Regulation 635-200 sets the general policies for the separation of enlisted personnel.  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.  

9.  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's contentions that family problems and the lack of adequate counseling from his chain of command contributed to his failure to complete his service obligation was carefully considered and found to lack merit.  There is no evidence available to support these contentions. 

2.  The available evidence does not include a copy of the applicant's separation packet with the specific facts and circumstances surrounding his final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the narrative reason for separation and the characterization of service.  Therefore, government regularity in the discharge process is presumed.

3.  The available evidence documents no acts of valor or significant achievement on the part of the applicant.  However, it does confirm a disciplinary history that included his acceptance of NJP, conviction by a SPCM, and 120 days of lost time.  This clearly did not support the issuance of a GD or HD by the separation authority at the time of his discharge, and it does not support an upgrade at this late date.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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.

5.  Based on the foregoing, 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)                                         AR20090021254



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ABCMR Record of Proceedings (cont)                                         AR20090021254



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