IN THE CASE OF:	  

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100009827 


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 (GD).

2.  The applicant states the following:

   a.  he was a drafted into the Army, having been the sole provider for his family;

   b.  he had numerous financial issues and dependents at home;

   c.  he chose the fastest way out of the military;

   d.  if the Army would have worked with him, he could have left the Army under honorable conditions; and

   e.  he sorely needs Department of Veterans Affairs (DVA) benefits.

3.  The applicant provides a copy of 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 personnel records show he was inducted into the Army of the United States and he entered active duty 23 January 1962.  He completed basic combat training at Fort Chaffee, AR.

3.  The applicant’s DA Form 24 (Service Record) shows he first departed absent without leave (AWOL) during his advanced individual training (AIT), from 1 April to 12 July 1962, for a total of 103 days.  Item 6 (Time Lost) also shows he accrued a total of 345 days of time lost during the following periods:

* 13 July to 22 August 1962 (41 days - confinement)
* 14 October to 11 November 1962 (29 days - AWOL)
* 12 November 1962 to 20 February 1963 (101 days - dropped from rolls (DFR))
* 21 February to 2 May 1963 (71 days - confinement)

4.  The applicant's record contains a DA Form 26 (Record of Court-Martial Conviction) which shows he was convicted by a special court-martial (SPCM) on 23 August 1962 and on 7 March 1963 for being AWOL.

5.  On 3 April 1963, the applicant underwent a medical evaluation for the purpose of determining his physical and mental condition prior to administrative separation processing.  He was determined physically and mentally sound with no disqualifying defects sufficient to warrant his disposition through medical channels.

6.  The applicant’s unit commander initiated action to eliminate him from service under the provisions of Army Regulation 635-208 (Personnel Separations-Discharge-Unfitness), by reason of unfitness and recommended that the applicant receive a UD.  The commander cited the applicant's disciplinary history, which included his court-martial convictions as the basis for taking the separation action.  He further stated that the applicant stated on numerous 

occasions that he desired to be discharged from the service regardless of the type of discharge he received or of the consequences he could face in civilian life.

7.  The applicant acknowledged that he had been notified of the separation action pending against him and that he had been furnished a copy of the commanding officer's report and statements supporting the recommendation for discharge.  He further indicated that he was offered military counsel, but waived his right to counsel.  The applicant waived his right to a hearing by a board of officers and he elected not to submit statements in his own behalf.

8.  On 24 April 1963, the separation authority approved the applicant’s separation under the provisions of Army Regulation 635-208 and directed he receive a UD. On 3 May 1963, the applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant on the date of his discharge shows he completed a total of 4 months and 1 day of creditable active service.  It also shows he accrued 345 days of time lost due to AWOL and confinement.

10.  There is no evidence indicating that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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.

12.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) governs the policies and procedures for the separation of enlisted personnel.  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 UD should be upgraded to a GD.

2.  The evidence of record shows the applicant had an extensive disciplinary history that included two separate SPCM convictions.  His discharge processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant’s record documents no acts of valor or significant service warranting special recognition and as a result his discharge accurately reflects his overall record of undistinguished service.  His overall record of service and extensive disciplinary history did not support the issue of a GD or HD at the time of his discharge, and does not support an upgrade at this time.

4.  Additionally, discharges are not upgraded solely for the purpose of making an individual eligible for benefits offered by another agency.

5.  In view of the forgoing, the applicant’s request should be denied.

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)                                         AR20100009827



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ABCMR Record of Proceedings (cont)                                         AR20100009827



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