IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100000982 


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 honorable.  

2.  The applicant states he was told that his discharge would be changed to honorable if he stayed out of trouble for six months after being separated.  

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 13 September 1967 for a period of three years.  

3.  On 28 December 1968, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to obey a lawful order (FOLO).  

4.  The applicant was convicted by a special court-martial on three separate occasions as follows:

	a.  5 March 1969 - Wrongfully possessing 14.20 grams and a trace, more or less, of marijuana.  He was sentenced to confinement at hard labor for 4 months, forfeiture of $73.00 pay for 4 months, and reduction to grade private, E-1.

	b.  23 July 1969 - Absent without leave (AWOL) from 2 June 1969 to 19 June 1969.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $80.00 pay for 6 months.

   c.  21 July 1970 - AWOL on four separate occasions from 1 October 1969 to 17 November 1969; 7 December 1969 to 6 February 1970; 6 March 1970 to 1 May 1970; and 6 June 1970 to 19 June 1970.  He was sentenced to confinement at hard labor for 4 months and forfeiture of $60.00 pay for 6 months.

5.  The applicant’s discharge packet is not available.  However, his DD Form 214 shows he was discharged on 26 August 1970 under the provisions of Army Regulation 635-212 by reason of unfitness - an established pattern of shirking.  He was issued an under other than honorable conditions (undesirable) discharge.  

6.  At the time of his discharge, the applicant had completed 2 years and 9 days of creditable active service with 335 days of lost time due to AWOL and confinement. 

7.  The applicant’s service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-212 set for the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(4) of the regulation provided that members involved in an established pattern for shirking were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.  



9.  Army Regulation 635-200 sets forth the basic policy 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.

10.  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 states he was told that his discharge would be changed to honorable if he stayed out of trouble for six months after being separated.  However, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  In the absence of evidence to the contrary, it is presumed that the applicant’s administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time.

3.  The applicant’s service record shows he received one Article 15 (FOLO) and three special courts-martial (wrongful possession of marijuana and AWOL).  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 for an honorable or a general under honorable conditions discharge.  

4.  The evidence of record does not indicate that 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 undesirable discharge to honorable.



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)                                         AR20100000982





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)