IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100013957 


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 reconsideration of the Board's denial of his previous request for an upgrade of his undesirable discharge.

2.  The applicant states he served no time in confinement and he was not counseled properly by his superiors.  He states his wife was having problems and needed to be with him because her family had rejected both of them.  He adds that he was granted leave and returned 1 day late and was carried in an absent without leave (AWOL) status.  He states by getting some counseling from ministers and his family members that his wife and he have been together for 46 years.  He adds that they are respectable community leaders with a very successful business.

3.  The applicant provides a copy of his request for discharge, an Extract of Military Records of Previous Convictions, a Statement (Article 15, Manual for Courts-Martial (MCM)), and a self-authored letter in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090021254, on 25 February 2010.

2.  The additional discharge proceedings related documents provided by the applicant are new evidence which were not previously reviewed by this Board and warrant consideration.

3.  On 17 May 1963, the applicant reenlisted in the Regular Army for a period of 3 years with a total of 6 years of prior active and inactive service.  He served in the military occupational specialty of light weapons infantryman.  The highest grade he attained was pay grade E-3. 

4.  Records show that he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 20 May 1964 for being AWOL from 1 April to 6 May 1964.

5.  On 5 October 1964, he was convicted by a special court-martial for being AWOL from 22 August to 20 September 1964.  He was sentenced to confinement at hard labor for 6 months, a reduction to pay grade E-1, and a forfeiture of $44.00 pay per month for 6 months.  The sentence was approved on the same date.

6.  Special Court-Martial Order Number 15, dated 30 March 1965, stated the unexecuted portion of his sentence to confinement at hard labor was remitted.

7.  The applicant provided a copy of Fort Bragg Form 680, subject: Request for Discharge, dated 5 October 1964, which indicated the reasons for the request for his discharge was that he was a chronic AWOL prospect and showed evidence of this offense in all units he had served in.  It further stated it would be a betterment to the service if he was separated under provisions of Army Regulation 635-208.  Another discharge processing document he provided indicated he received a final type physical examination and had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.

8.  A complete discharge packet is not available for review.  His DD Form 214 shows 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.

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

10.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness (misconduct).  The regulation provided for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when in the judgment of the commander it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

11.  Army Regulation 635-200 sets the general policies 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 family problems and the lack of proper counseling from his chain of command was the reason he failed to complete his service obligation.  However, there is no evidence available to support these contentions. 

2.  Notwithstanding the additional discharge proceedings related documents provided by the applicant, the available evidence does not include a copy of his 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 shows a disciplinary history that included his acceptance of NJP, conviction by a special court-martial, and 120 days of lost time.  This clearly did not support the issuance of a general or honorable discharge 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.  The applicant's entire military record and his post-service conduct were taken into consideration.  However, given the seriousness of the offenses, his service is appropriately characterized.

6.  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 to amend the decision of the ABCMR set forth in Docket Number AR20090021254, dated 25 February 2010.




      _______ _   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)                                         AR20100013957



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ABCMR Record of Proceedings (cont)                                         AR20100013957



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