BOARD DATE: 5 October 2010
DOCKET NUMBER: AR20100010122
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 under other than honorable conditions discharge (UOTHC) to general under honorable conditions.
2. The applicant makes no statement.
3. The applicant provides no documentation in support of his request.
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 enlisted in the Regular Army on 29 December 1965. He was
17 years old at the time, and a DD Form 373 (Consent, Declaration of Parent or Legal Guardian) shows his mother consented to his enlistment.
3. On 7 January 1966, the applicant was assigned to Company A, 1st Battalion, 2d Basic Combat Training (BCT) Brigade, Fort Leonard Wood, MO, for BCT.
4. On 18 February 1966, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from Company A, 2d BCT Brigade on 13 February 1966.
5. After completing BCT, the applicant was assigned to Headquarters and Headquarters Company (HHC), U.S. Army Southeastern Signal School (USASESS), Fort Gordon, GA, on or about 19 March 1966.
6. Special Court-Martial Order Number 183, USASESS, dated 20 June 1966, shows the applicant was found guilty of one specification of absenting himself without proper authority from HHC, USASESS, from 19 March 1966 to 10 May 1966. He was sentenced to be confined at hard labor for 6 months, to forfeit $55 per month for 6 months, and to be reduced to the lowest enlisted grade.
7. Special Court-Martial Order Number 238, same headquarters, dated 26 July 1966, suspended the unexecuted portion of the sentence to confinement at hard labor.
8. The applicant's record includes an undated letter he wrote to Mrs. Lyndon B. Johnson, the wife of the President. In his letter, he made the following statement:
When I joined the Army I was treated like a kid now I'm treated like a baby. This does'nt [sic] protain [sic] to me alone, almost every-one [sic] has the same problem. I joined the Army for electronics or mechanics and they put me in A.S.A. (Army Security Agent [sic]). If I have to spend 4 years in some thing [sic] I don't like plus being treated like a baby, I'll take a hard-ship [sic] discharge first. I have good enough ground [sic] for one too.
He continued, citing his large family headed by his unemployed mother as the grounds for a hardship discharge.
9. On 10 August 1966, at the request of Mrs. Johnson, The Adjutant General responded to the applicant, informing him of the procedures for applying for a hardship discharge. The record shows, on or about 17 August 1966, the letter was returned because the applicant's address was unknown.
10. The record is void of documentation showing the applicant submitted a request for a hardship discharge to his chain of command.
11. A DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost Under Section 972, Title 10, United States Code) the applicant was absent without leave (AWOL) from 30 July to 28 August 1966 and dropped from the rolls (DFR) during the period 29 August to 2 October 1966. Item 44 also shows he was confined from 3 to 5 October 1966 and confined by civil authority from
6 October 1966 to 25 January 1967.
12. On 12 January 1967, Headquarters, U.S. Army Personnel Center, Fort Hamilton, NY, sent a letter to the Court Clerk, Oneida County Jail, Utica, NY, requesting information on the applicant's civil conviction and sentence. The Oneida County Sherriff's Department's response shows he was arrested on
6 October 1966 in Utica, NY; convicted of "Burg third & Gl;" and sent to the Elmira Correction Center in Elmira, NY, "till discharged by law." The response shows he was not to serve more than 3 years.
13. Special Order Number 21, Headquarters, U.S. Army Personnel Center, Fort Hamilton, dated 25 January 1967, discharged the applicant effective 25 January 1967. The order shows the authority for separation was Army Regulation
635-206 (Personnel Separations - Discharge - Misconduct).
14. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was discharged under conditions other than honorable by reason and authority of Section III, Army Regulation 635-206. He completed 7 months and 1 day of creditable military service with 180 days of time lost.
15. On 6 February 1967, the U.S. Army Personnel Center forwarded the applicant's separation documents to him at the Elmira Correction Center. He acknowledged receipt of the documents with his signature.
16. On 7 December 1967, The Adjutant General informed the applicant that the Army Discharge Review Board had determined that he had been properly discharged and denied his request for a change in the type and nature of his discharge.
17. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year.
18. Army Regulation 635-200 sets forth the basic policy 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 evidence of record does not support the applicant's request for an upgrade of his UOTHC discharge to general under honorable conditions.
2. There is no evidence which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or the rights of the applicant were not fully protected throughout the separation process. Absent such evidence, regularity must be presumed in this case.
3. The applicant's record of service includes NJP, conviction by a special court-martial, 180 days of time lost due to being AWOL and confined, and conviction by a civil court. Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to a general discharge.
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.
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