IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100026906 


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 the general told him that he did not deserve to be discharged.  He also states that the person who was with him and committed the crimes he was charged with did not receive a discharge and continued to serve even though he was under surveillance by the FBI for drug smuggling.  He further stated at the time he was 23 years old and not thinking maturely.

3.  The applicant provides a copy of:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a letter from the Florida Department of Agriculture and Consumer Services, dated 9 September 2010
* four letters of support dated in 1968 and 1969
* his résumé with addendum
* a document for verifying his signature

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.  On 16 January 1969, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty (MOS) 67N (Single Rotor Turbine Utility Helicopter Mechanic).

3.  On 18 May 1970, the applicant was convicted by a special court-martial of violation of Article 86, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 2 June to 19 June 1969 and from 1 July 1969 to
20 April 1970.  He was sentenced to forfeiture of $75.00 per month for 3 months, confinement at hard labor for 36 days, and reduction to private (PV1)/E-1.

4.  On 4 June 1970 the court-martial convening authority only approved so much of the sentence as provided for forfeiture of $40.00 per month for 3 months, confinement at hard labor for 30 days, and reduction to the lowest enlisted grade.

5.  Item 44 (Time Lost) of his DA Form 20 (Enlisted Personnel Qualification Record shows:

* 2 to 18 June 1969:  AWOL for 17 days
* 19 to 25 June 1969:  Military confinement for 7 days
* 1 July 1969:  AWOL
* 2 July 1969 to 19 April 1970:  Dropped from the rolls (DFR)
* 20 to 22 April 1970:  Traveling under guard for 3 days
* 23 April to 10 June 1970:  pretrial confinement for 49 days

6.  A DA Form 2496-1 (Disposition Form), subject:  Receipt of Elimination Proceedings, dated 2 July 1970, filed in his official military personnel file (OMPF) indicates that the applicant signed for a copy of his elimination proceedings under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).


7.  The discharge packet is not in his available personnel records.  However, his DD Form 214 shows that he was administratively discharged on 2 July 1970 under the provisions of Army Regulation 635-212 due to unfitness.  He was given separation program number 28B (Unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities).  His service was characterized as under other than honorable conditions with issuance of an Undesirable Discharge Certificate.  He had completed 5 months and 13 days of total active service with 369 days of time lost due to AWOL and confinement.

8.  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.

9.  The supporting documents provided by the applicant essentially show:

	a.  that in 2010, the applicant had applied for a concealed weapons license and he was required to provide 1969 arrest documents from the sheriff's office in Key West, FL concerning his AWOL from the U.S. Army;

	b.  that four previous employers considered him a good worker and recommended him for future employment; and

	c.  his résumé, with addendum, outlining his employment history and indicating he was currently receiving Social Security Disability benefits for being 100 percent disabled.

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.  The regulation provided that members were subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 sets forth the basic authority 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.


12.  Army Regulation 15-185 (ABCMR), paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to a general discharge because the general told him that he did not deserve to be discharged.  He also contends that another person, who he was with at the time, had committed the crimes for which he was charged.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The available evidence clearly shows that the applicant had 369 days of time lost due to AWOL and confinement.  He has not provided any evidence or convincing argument showing that he was wrongly charged with a crime.

4.  Based on the applicant's record of AWOL his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This time lost renders his service unsatisfactory.

5.  Records show that the applicant was over 22 years of age at the time of his first AWOL offense.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

6.  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)                                         AR20100026906



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100026906



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1