IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016752 


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 that his undesirable discharge be upgraded to a general discharge and that he be paid his final pay.

2.  The applicant states his discharge was unjust because his extenuating circumstances were not taken into consideration.  He goes on to state his mother was extremely ill at the time and he was being brutally treated at the stockade at the Presidio of San Francisco, California.  He also states he did not receive his final pay at the time of his discharge and he was told his discharge would be upgraded in 6 months.  He concludes by stating he needs his discharge upgraded so that he can obtain treatment for hepatitis C which he contracted in the service.

3.  The applicant provides:

* a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a one-page statement explaining his application
* a one-page statement from Veterans Service Officer in California
* a partial copy of the facts and circumstances surrounding his administrative discharge
* copies of some of his military pay vouchers



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 was inducted in Oakland, California, on 15 March 1967.  He completed his basic training at Fort Polk, Louisiana, and his advanced individual training as a cannoneer at Fort Sill, Oklahoma, before being transferred to Fort Carson, Colorado, for first and only duty assignment.  He arrived at Fort Sill on 2 August 1967.

3.  On 21 October 1967, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 13 October 1967 to 19 October 1967.  His punishment consisted of forfeiture of pay, reduction to pay grade E-1, extra duty, and restriction.

4.  The applicant again was AWOL from 6 November 1967 to 26 November 1967; however, the record is silent as to any punishment imposed for that offense.

5.  He again was AWOL on 16 February 1968 and remained absent until he was apprehended by civil authorities in San Jose, California, on 4 March 1968 for possession of marijuana.  He was returned to military control at Fort Ord, California, on 20 March 1968 and charges were preferred against him for the AWOL offense.

6.  On 9 April 1968, he was convicted by a summary court-martial of being AWOL from 16 February 1968 to 20 March 1968.  He was sentenced to confinement at hard labor for 30 days, forfeiture of pay, and reduction to pay grade E-1.  The convening authority approved the sentence; however, he suspended the portion of the sentence to confinement at hard labor for 30 days for a period of 30 days unless sooner vacated.  The suspension was subsequently vacated.

7.  The applicant again was AWOL on 18 April 1968 and he remained absent in desertion until he was returned to military control at the Presidio of San Francisco on 2 July 1968 and charges were preferred against him.

8.  On 2 August 1968, he was convicted by a special court-martial of being AWOL from 18 April 1968 to 2 July 1968.  He was sentenced to confinement at hard labor for 6 months and forfeiture of pay for 6 months.

9.  On 5 August 1968, he escaped from confinement and remained absent in desertion until he was apprehended on 11 October 1968 in San Jose by civil authorities and was returned to the Presidio of San Francisco where charges were preferred against him with a view to trial by a general court-martial.

10.  The applicant was arrested on 15 April 1969 in San Jose for theft and went AWOL from 21 April 1969 to 10 May 1969.

11.  On 23 May 1969, the applicant's commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.

12.  He cited as the basis for his recommendation:

* the applicant had been convicted by a summary and special court-martial for AWOL
* the applicant was pending trial by a general and a special court-martial
* the applicant was pending action by civil authorities in Santa Clara County for alleged theft
* the applicant refuses to adjust and has been a disciplinary problem to every unit assigned since induction

13.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

14.  The appropriate authority approved the recommendation for discharge on 13 June 1969 and directed that he be furnished an Undesirable Discharge Certificate.

15.  Accordingly, he was discharged under other than honorable conditions on 20 June 1969 under the provisions of Army Regulation 635-212 for unfitness due to frequent involvement in incidents of a discreditable nature with civil and military authorities.  He had 1 year, 9 months, and 15 days of total active service.  He had 171 days of lost time due to AWOL and confinement.

16.  At the time of his discharge he acknowledged with his signature that he had been informed of the procedures for applying to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  However, there is no evidence in the available records to show that he ever applied to the Army Discharge Review Board.

17.  The military pay voucher provided by the applicant covers service only to 14 March 1969 and that voucher indicates he was in the post stockade.  There is no evidence in the available records regarding his pay from 15 March 1969 to 20 June 1969 when he was discharged.

18.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided that members who established a pattern of shirking or who were involved in frequent incidents of a discreditable nature with civil and/or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) currently governs the policies and procedures 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.

20.  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's administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.  Accordingly, the type of discharge and the reasons were appropriate considering the facts of the case and his otherwise undistinguished record of service during such a short period of time.

2.  The applicant's contentions were noted and found to be without merit.  The applicant demonstrated his ability to successfully serve under the established enlistment standards by completing his training.  However, he decided he did not want to serve and began a repeated pattern of AWOL throughout the remainder of his service.  His service simply does not rise to the level of service under honorable conditions.  Accordingly, there appears no basis to warrant an upgrade of his discharge.

3.  In regard to his contention that he did not receive his final pay, there is no evidence such was the case, especially 41 years after the fact.

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 this requirement.

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 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)                                         AR20100016752



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ABCMR Record of Proceedings (cont)                                         AR20100016752



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