IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100019764 


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 undesirable discharge to an honorable discharge.

2.  The applicant states that he was discharged for being absent without leave for about 100 days.  Since his discharge, a change was made permitting an honorable discharge to be granted if the number of days of AWOL was less than 180 days.

3.  The applicant provides no additional documents in support of 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 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’s record shows that he was inducted into the Army of the United States on 20 July 1966.  He completed the required training and he was awarded military occupational specialty (MOS) 12A (Pioneer).  The highest rank/grade he attained was specialist four (SP4)/E-4.

3.  On 31 March 1967, during the applicant's special court-martial proceedings, he pled guilty to the charge and specifications of violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the period:

* 14 November 1966 until on or about 25 November 1966
* 30 November 1966 until on or about 2 December 1966
* 5 December 1966 until on or about 7 December 1966
* 4 January 1967 until on or about 11 January 1967
* 10 February 1967 until on or about 13 February 1967
* 16 February 1967 until on or about 20 February 1967
* 0800 hours on 28 February 1967 until on or about 28 February 1967

He was sentenced to confinement at hard labor for 3 months and a forfeiture of $40.00 pay per month for 6 months.

4.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date of ETS [expiration of term of service]) of his DA Form 20 (Enlisted Qualification Record) shows he was confined during the period:

* 1 March 1967 through 22 May 1967
* 5 August 1968 through 20 August 1968
* 21 August 1968 through 11 September 1968

5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain a DD Form 214 which shows that on 12 September 1968, the applicant was discharged under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Fitness and Unsuitability), under separation program number (SPN) 28B for unfitness, with an undesirable discharge, characterized as under conditions other than honorable.  It further shows that at the time of his discharge he completed 1 year, 8 months, and 1 day of total active service with 166 days of time lost due to AWOL and confinement.

6.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  There is no regulatory provision, then or now, that provides for an honorable discharge if a Soldier is AWOL for less than 180 days.

8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

9.  Army Regulation 635-200 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.

10.  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 contends his undesirable discharge should be upgraded to an honorable discharge because he had less than 180 days of AWOL.  His contention was carefully considered; however, it is not sufficiently mitigating to warrant an upgrade of his discharge

2.  The applicant’s record shows he was convicted by a special court-martial for being AWOL on seven occasions during the period between 14 November 1966 and 28 February 1967.  He also had three periods of confinement.

3.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or a general discharge.

4.  Although his separation packet is not available for review, in the absence of evidence to the contrary it appears his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

5.  In view of the foregoing, there is insufficient evidence to grant 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 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)                                         AR20100019764



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ABCMR Record of Proceedings (cont)                                         AR20100019764



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