IN THE CASE OF:	  

		BOARD DATE:	    31 May 2011

		DOCKET NUMBER:  AR20100027274 


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 an upgrade of his undesirable discharge.

2.  He states that he was having family issues and if he could have had some time would have been a great Soldier.

3.  He provides no additional documents.

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 27 October 1962 for a period of 3 years.  He completed basic combat training at Fort Knox. KY and transferred within station for advanced individual training.

3.  His DA Form 24 (Service Record) shows in Section 6 (Time Lost) the entry:

* 11 January to 20 January 1963, absent without leave (AWOL)
* 23 February to 4 March 1963, AWOL
* 7 March to 18 March 1963, AWOL
* 19 March to 17 April 1963, confinement
* 30 April to 6 June 1963, AWOL
* 7 June to 14 July 1963, confinement

4.  He was convicted by a summary court martial of violating Article 86, Uniform Code of Military Justice (UCMJ), for being AWOL from 11 January to 21 January 1963.

5.  He was convicted by a special court-martial of violating Article 86, UCMJ, for being AWOL from 23 February to 5 March 1963 and 7 March to 19 March1963.

6.  He was convicted by a special court-martial of violating Article 86, UCMJ, for being AWOL from 30 April to 29 May 1963.

7.  On 6 June 1963, he underwent a psychiatric evaluation.  The military physician stated the he had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels, he was mentally responsible, able to distinguish between right and wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He should be recommended for elimination.  The military physician diagnosed him with emotional instability reaction which was not in the line of duty and existed prior to service.

8.  On 10 June 1963, he acknowledged notification of his unit commander's recommendation to separate him under the provisions of Army Regulation
635-208 (Personnel Separations - Unfitness - Frequent Incidents of a Discreditable Nature with Civil or Military Authorities) for unfitness with an undesirable discharge characterized as under other than honorable conditions.

9.  He was advised of his rights and the impact of the discharge.  He declined his right to consult with legal counsel and waived his right to submit a statement in his own behalf and to have a hearing before a board of officers.

10.  On 10 June 1963, his unit commander recommended his separation from the service for unfitness with the issuance of an undesirable discharge.  The commander's action was based on the applicant's continuing AWOL problem, 

irresponsibility, and poor motivation.  The commander further stated that he will be a continuing AWOL problem if retained in the service.

11.  On 11 June and 13 June 1963, the applicant's intermediate commanders concurred with the separation action with issuance of an undesirable discharge.

12.  On 1 July 1963, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-208 for unfitness.  He directed the applicant be furnished an Undesirable Discharge Certificate.

13.  On 15 July 1963, he was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows:

* he was discharged under the provisions of Army Regulation 635-208 with a separation program number (SPN) of 28B (Unfitness - Frequent Incidents of a Discreditable Nature with Civil or Military Authorities)
* his service was characterized as under other than honorable conditions
* he was issued an Undesirable Discharge Certificate
* he had 137 days of time lost due to AWOL and confinement
* he completed 4 months and 2 days of creditable net active service during this period
* he held the rank/grade of private (PV1)/E-1 at the time of his discharge

14.  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.

15.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not discharged based on one incident.  He was discharged based on four periods of time lost due to AWOL and two periods of confinement, two special courts-martial, and one summary court-martial during his 8 months and 19 days in the Army, for which he only completed 4 months and two days of creditable active service.

2.  The evidence shows he was properly and equitably discharged in accordance with the regulation in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  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 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)                                         AR20100027274



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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