BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100024897 


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 a general discharge.

2.  The applicant states that many of the records have been found to be unfair and unjust based on the period of time and prominent racism.  There was verbal abuse based on race and detriment of character. 

3.  The applicant provides no documentation 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 was inducted into the Army of the United States on 9 June 1967.   He completed basic combat training at Fort Bragg, NC, but he never completed advanced individual training.  

3.  On 7 December 1967, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from his unit from on or about
27 September 1967 to on or about 5 October 1967 and from on or about
11 October 1967 to on or about 29 October 1967.  During the processing of his Article 15's he was advised that he may receive legal assistance in reference to the Article 15's.  The applicant did not appeal his punishment.

4.  On 15 May 1968, the applicant was convicted by a special court-martial for being AWOL from on or about 2 January 1968 to on or about 11 April 1968.  His sentence included confinement at hard labor for 3 months.

5.  On 29 October 1968, the applicant was convicted by a special court-martial for being AWOL from on or about 31 May 1968 to on or about 1 September 1968.  He was sentenced to confinement at hard labor for 6 months.

6.  On 17 February 1969, a Charge Sheet was prepared indicating that he was AWOL from his unit from on or about 17 February 1969 until on or about
28 February 1969 and from 28 February 1969 until an unspecified date.

7.  On 28 February 1969, he was returned from AWOL status to Fort Dix.

8.  Item 44 (Time Lost Under Section 972, U.S. Code and Subsequent to Normal Date ETS [Expiration of Term of Service]) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows he was AWOL, DFR, and confined on several occasions during the period 24 September 1967 through 24 June 1969.  His record shows he had a total of 450 days of time lost.

9.  The specific facts and circumstances pertaining to the applicant's discharge proceedings are not available for review.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time of discharge shows he was discharged on 25 June 1969 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He was issued an Undesirable Discharge Certificate.  He completed 9 months and 22 days of total active service.


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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood that he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service.

12.  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 contentions were carefully considered and found to be insufficient in merit.  

2.  The evidence shows that the applicant was AWOL and he was confined on several occasions for a combined total of 450 days.

3.  The available evidence does not include a copy of the applicant's separation packet with the specific facts and circumstances surrounding his final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's final discharge.  Therefore, government regularity in the discharge process is presumed.

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge.  The applicant has submitted neither 

probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  

5.  In view of 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 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)                                         AR20100024897



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ABCMR Record of Proceedings (cont)                                         AR20100024897



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