IN THE CASE OF:
BOARD DATE: 19 April 2011
DOCKET NUMBER: AR20100025316
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.
2. The applicant states:
* his mother had cancer and she was dying
* he took leave from Korea and could not leave her
* he knows he was wrong, he just loved his mother
* he is truly sorry
3. The applicant provides no additional documentation.
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 on 14 March 1969 for a period of 3 years. He completed training as a carpenter.
3. He accepted nonjuduicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on
* 22 January 1970, for, with the intent to defraud, on 6 January 1970, falsely sign the signature of a CPT J--- L. C---, MD, on a DD Form 689 (Individual Sick Slip)
* 5 August 1970, for failing to go at the time prescribed to his appointed place of duty on 31 July 1970
* 7 August 1970, for failing to go at the time prescribed to his appointed placed of duty on 7 August 1970
* 23 October 1970, for being absent without leave (AWOL) from on or about 6 October 1970 until on or about 19 October 1970
4. On 30 December 1970, the applicant was arrested by civil authorities for breaking and entering. He was found guilty of the offense, pursuant to his plea.
5. On 16 July 1971, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court,
AWOL, Desertion), due to conviction by civil authorities.
6. On 19 July 1971, the applicant was convicted by a special court-martial of being AWOL from:
* 9 November to 19 December 1970
* 21 December 1970 to 15 April 1971
* 6 to 13 May 1971
* 3 to 23 June 1971
7. The applicant acknowledged receipt of the notification of his discharge on 21 July 1971. After consulting with counsel, he waived his rights and he elected not to submit a statement in his own behalf.
8. The appropriate authority approved the recommendation for discharge on 11 August 1971. The applicant was discharged on 17 August 1971, under the provisions of Army Regulation 635-206, due to conviction by civil authorities.
9. On 24 June 1977, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.
10. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct resulting in conviction by civil court. An undesirable discharge was normally considered appropriate.
11. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence in the available records substantiating his contentions. His record shows he was arrested and convicted by civil authorities of breaking and entering. Although his record shows an extensive period of unauthorized absence, he was discharged as a result of his civil conviction.
2. He had NJP imposed against him on four separate occasions for acts of misconduct and he was convicted by a special court-martial for numerous AWOL offenses.
3. In view of the foregoing, there is no basis for granting his 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) AR20100025316
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100025316
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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