IN THE CASE OF:
BOARD DATE: 6 January 2011
DOCKET NUMBER: AR20100017757
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 more favorable discharge.
2. The applicant states that he should have been discharged in basic training as not suitable for military life. He further states that he joined when he was 17 years of age and wants nothing more than burial rights, which he feels is just.
3. The applicant provides no additional documents with his application.
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 with parental consent in Houston, Texas on 24 August 1972 for a period of 2 years. He was transferred to Fort Polk, Louisiana to undergo his basic training.
3. On 16 October 1972 nonjudicial punishment was imposed against him for being drunk and disorderly in uniform in a public place.
4. He completed his advanced individual training as a laundry, bath and impregnation specialist at Fort Lee, Virginia and was transferred to Fort Sill, Oklahoma for his first and only duty assignment.
5. The applicant went absent without leave (AWOL) on 20 February 1973 and remained absent until he was arrested by civil authorities in Nashville, Tennessee and was returned to military control at Fort Campbell, Kentucky on 25 February 1973.
6. The applicant again went AWOL on 1 March 1973 and remained absent until he was arrested by civil authorities in Forrest City, Arkansas and charged with armed robbery and auto theft.
7. The facts and circumstances surrounding his administrative discharge are not present in the available records. However, his records do contain a duly authenticated DD Form 214 which shows that he was discharged under other than honorable conditions on 21 November 1973 under the provisions of Army Regulation 635-206 due to conviction by civil authorities. He had served 5 months and 29 days of total active service and had 272 days of AWOL and confinement by civil authorities.
8. There is no evidence to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
9. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation upon completion of their appeal of the civil conviction or immediately after they acknowledge that they do not intend to appeal the conviction. An undesirable discharge was normally considered appropriate.
10. Army Regulation 635-200, 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.
11. 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. In the absence of evidence to show otherwise, it must be presumed that the applicants administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors, which would tend to jeopardize his rights.
2. Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.
3. The applicants contentions have been noted. However, given the seriousness of his offenses and his overall record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge.
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 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) AR20100017757
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ABCMR Record of Proceedings (cont) AR20100017757
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