IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100023083 


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, in effect, that his undesirable discharge be upgraded to a more favorable discharge.

2.  The applicant states he was advised by his commanding officer that it would best for him to be absent without leave (AWOL) for 7 days.  This was not true because he was immediately discharged, which was not his understanding.  He was a good Soldier and even received the Army Good Conduct Medal.  He gave a false statement concerning the use of drugs so he could get out of service.  He believes if he had received the correct advice he would not have received an undesirable discharge.

3.  The applicant did not provide any additional evidence in support of his request.

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 enlisted in the Regular Army on 13 July 1962.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  On 13 July 1964, he was honorably discharged for the purpose of immediate reenlistment on 14 July 1968 for a period of 6 years.

3.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 11 February 1964, for failing to make bed check 
* on 8 December 1964, for being absent from his appointed place of duty
* on 25 April 1967, for driving his privately-owned vehicle on post without post registration and a parking violation

4.  On 5 February 1968, the applicant accepted NJP under Article 15, UCMJ, for being absent from his appointed placed of duty and for owing a debt to a loan agency.

5.  The evidence of record shows the applicant was AWOL for the period 25 March 1968 through 26 March 1968.

6.  The evidence of record shows the applicant was AWOL on 2 April 1968.

7.  On 26 April 1968, the applicant accepted NJP under Article 15, UCMJ, for being absent from his appointed placed of duty.

8.  On 22 May 1968, the applicant pled guilty at a special court-martial to one specification of being AWOL during the period on or about 5 May 1968 through on or about 12 May 1968.  The court found him guilty and sentenced him to a reduction to the lowest enlisted grade and forfeiture of $50.00 pay for 1 month.

9.  On 27 May 1968, the applicant's immediate commander recommended that he appear before a board of officers convened under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for the purpose of determining whether he should be discharged 

before the expiration of his term of service.  On the same date, the applicant was notified of the commander's intent to initiate his elimination from the Army.

10.  The applicant acknowledged he had been notified of the pending separation action against him and that he had been advised by counsel of the basis for the contemplated action to separate him for unfitness.  He acknowledged that he understood he could encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him and, in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and might encounter substantial prejudice in civilian life.

11.  The evidence of record shows the applicant was AWOL for the period 17 July 1968 through 22 July 1968.

12.  On 24 July 1968, the convening/separation authority approved the board's findings and recommendations and ordered that the applicant be issued an Undesirable Discharge Certificate.

13.  On 27 July 1968, the applicant was discharged by reason of unfitness after completing 3 years, 11 months, and 14 days of creditable active service during this term of service with 30 days of lost time due to AWOL and confinement.  Item 13a (Character of Service) of the applicant's DD Form 214 shows the entry "under other than honorable conditions."

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern of shirking, or an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents were subject to separation for unfitness.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

16.  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 that his undesirable discharge should be upgraded to a more favorable discharge.  However, his records show he received five Article 15's, he was convicted by a special court-martial, and he had four instances of AWOL.  He completed 3 years, 11 months, and 14 days of creditable active service during this term of service with 30 days of lost time due to AWOL and confinement.  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.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  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 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)                                         AR20100023083



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ABCMR Record of Proceedings (cont)                                         AR20100023083



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