IN THE CASE OF:	  

		BOARD DATE:	    27 July 2010

		DOCKET NUMBER:  AR20100001042 


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 to a general discharge. 

2.  The applicant states he was worried about his mother and presented no problems while in the service.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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's military records show he was inducted into the Army of the United States on 15 July 1966.  He did not complete his initial entry training and he was not awarded a military occupational specialty.  The highest rank/grade he attained was private (PV2)/E-2.

3.  The applicant’s records contain a letter, dated 22 September 1966, regarding his apparent request to the U.S. President for separation from active military service due to family hardship.  This letter, addressed to the applicant, stated that undue and genuine hardship does not necessarily exist solely because of altered income or because the enlisted man is separated from his family or must suffer the inconvenience normally incident to military service.  The letter indicated a checklist outlining the policy and procedures for submitting an application for hardship or dependency separation was enclosed.

4.  Headquarters, 1st Training Brigade, Fort Polk, LA, Summary Court-Martial Order Number 44, dated 31 August 1966, shows the applicant was arraigned and tried for being absent without proper authority from on or about 5 August until on or about 17 August 1966.  On 29 August 1966, he pled guilty, he was found guilty, and he was sentenced to restriction for one month and a forfeiture of $25.00 for one month.  On 31 August 1966, the sentence was approved and ordered duly executed.

5.  The available evidence shows that the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two occasions during the period 21 October 1966 to
18 January 1967 for being absent without proper authority.

6.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was absent without authority on six occasions for a total of 163 days and in confinement on two occasions for a total of 9 days.

7.  The applicant's complete discharge packet is not contained in his records.  However, on 20 April 1967, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial, with issuance of a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 he was issued shows he completed a total of 6 months of active service with non-pay periods of time lost of 5 August to 24 August 1966, 11 October to 20 October 1966, and
3 January to 8 March 1967.

8.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood that he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service. 

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 was convicted for being absent without proper authority during the period 5 August 1966 until 17 August 1966.  He also accepted NJP on two occasions for being absent without proper authority.  His records show that he had a total of approximately 172 days of lost time due to being absent without proper authority and confinement.

2.  The applicant would have voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  Based on the applicant's misconduct, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

3.  The applicant contends he was worried about his mother.  The Army has policies and procedures to deal with hardships, including compassionate reassignments and hardship discharges.  Notwithstanding the reply letter regarding separation from active military service, the applicant has not submitted any evidence to show he properly applied for a compassionate reassignment or a hardship discharge.  However, even if he did, it would not form the basis to upgrade his discharge.
4.  In view of 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)                                         AR20100001042



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR201