IN THE CASE OF:
BOARD DATE: 10 February 2011
DOCKET NUMBER: AR20100018931
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 his undesirable discharge be upgraded to a general discharge.
2. The applicant states:
* His ability to serve was impaired because of his immaturity and marital issues
* He went absent without leave (AWOL) to take care of his wife
* He has been married for 31 years and raised three children
* His record is clean
3. The applicant provides his DD Form 214 (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 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 was born on 16 November 1948. He was inducted into the Army of the United States on 11 March 1969. He successfully completed basic combat training.
3. On 9 June 1969, while in advanced individual training, nonjudicial punishment was imposed against the applicant for being AWOL.
4. On 18 May 1970, he was convicted by a special court-martial of being AWOL from 3 July 1969 to 9 October 1969 and from 20 October 1969 to 15 April 1970. He was sentenced to be confined at hard labor for 4 months and to forfeit $56.00 per month for 4 months. On 21 May 1970, the convening authority approved the sentence.
5. On 23 June 1970, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities. The unit commander cited the applicant's special court-martial conviction and 295 days of lost time.
6. After consulting with counsel and being advised of his separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel. He also elected not to submit a statement on his own behalf.
7. On 10 July 1970, the separation authority approved the recommendation for separation and directed the applicant be furnished an undesirable discharge.
8. He was separated on 23 July 1970 with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil or military authorities. He had served 4 months and 20 days of creditable active service with 358 days of lost time.
9. There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.
10. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.
11. 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 applicant contends his ability to serve was impaired by his immaturity and marital issues. However, immaturity is not a sufficiently mitigating factor. He was 20 years of age when he was inducted and he completed basic combat training.
2. His contention he went AWOL to take care of his wife was noted. However, there is no evidence he sought assistance from his chain of command or chaplain for a way to resolve his marital problems within established Army procedures prior to going AWOL.
3. Good post service conduct alone is normally not a basis for upgrading a discharge.
4. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
5. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.
6. His brief record of service included one special court-martial conviction and 358 days of lost time. As a result, his record of service was not satisfactory. Therefore, the applicant's record of service is insufficiently meritorious to warrant 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.
ABCMR Record of Proceedings (cont) AR20100018931
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ABCMR Record of Proceedings (cont) AR20100018931
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