IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100027876 


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 (UD) to a general discharge (GD).

2.  He states, in effect, that he believes a GD more accurately characterizes his service. 

3.  He provides a self-authored statement, statements from four of his siblings, and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 1 May 1968 to 17 August 1971.

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's record shows he served honorably as an enlisted member of the Regular Army (RA) from 6 February 1959 to 21 March 1961 and from 22 March 1961 to 30 June 1967.

3.  Following a break in service, he enlisted in the RA on 1 May 1968.  He was assigned to Vietnam from 3 June 1968 to 11 November 1969.  He served in military occupational specialty 71H (Personnel Specialist) and he was assigned to the 15th Administration Company, 1st Cavalry Division (Airmobile), from on or about 9 June 1968 to 11 November 1969.  

4.  The record shows he received punishment three times under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the following periods while assigned for duty in Vietnam:

* 25 June to 10 July 1969
* 25 to 29 September 1969
* 5 to 9 October 1969

5.  His DA Form 20 (Enlisted Qualification Record) shows in:

* item 38 (Record of Assignments) he was dropped from the rolls on 16 December 1969  
* item 44 (Time Lost) in addition to the above periods of AWOL he was AWOL from 15 November 1969 to 28 December 1970 and he was in civilian confinement from 7 January to 10 June 1971 due to a charge of theft

6.  On 25 June 1971, his commander informed him he was recommending him for elimination from the military under the provisions of Army Regulation 635-206 due to excessive AWOL.  

7.  On 30 June 1971, he acknowledged he had consulted with legal counsel and had been advised of his rights and of the basis for the contemplated separation action.  He waived his rights to a hearing before a board of officers and representation by military counsel.  He further acknowledged he understood if a UD was issued to him he could be deprived of many or all rights as a veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life.





8.  He submitted the following statement on his behalf.

First off I would like to say that I have enjoyed my ten (10) years in the Army up until I had approximately fifty (50) days to go on a 19 month tour in the Far East.  I had serious family problems, namely to make a long story short my wife deserted my son here in the states while I was over there.  I tried every conceivable way including the Red Cross to get emergency leave back to the states.  I will readily admit that when this request was denied I went in a down hill run.  I received two very quick Article 15's and was subsequently reduced from Staff Sergeant E-6.  At the time all this started I was working as a 71H40, [assistant noncommissioned officer in charge] of Division Officers' Records, [Headquarters] 1st Air Cavalry Division.  I personally cared for and maintained the Commanding General's 201 File, as well as the two Assistant Division Commanders.  After working this job for over 16 straight months there was a great deal of pressure on me.  Combined with my problem at home I just started drinking too much and not showing up for work or when I did show up I was always late.  I came home to the states and acted as though I was out of the Army completely.  In so doing I was AWOL for a period of 14 months.  I turned myself in to civilian authorities in my home town.  

I definitely want out of the service even though I don't dislike it that much.  I am presently being processed for a discharge [under the provisions] of [Army Regulation] 635-206 for excessive AWOL.

9.  On 23 July 1971, the separation authority approved his discharge and directed that he be furnished an Undesirable Discharge Certificate.  On 17 August 1971 he was discharged accordingly with his service characterized as under conditions other than honorable.  He completed 9 years, 9 months, and
8 days of total active service with 546 days of time lost during this period of service.

10.  It appears the applicant applied to the Army Discharge Review Board for an upgrade of his discharge outside of the 15-year statute of limitations on 3 May 2010.

11.  In the self-authored statement he provided with his application, he recounts the circumstances leading to his discharge, and states, in effect, he feels his service in the Army was not good, but also not "undesirable."  He thinks a GD would suit him better.



12.  The statements provided by the applicant's siblings indicate he had marital problems that eventually led to him going AWOL and drinking heavily.   

13.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and AWOL or desertion).  The regulation authorized separation by reason of misconduct for individuals who were AWOL for a prolonged period exceeding 1 year.  A UD was normally considered appropriate.  

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provides that a GD 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 evidence of record does not support the applicant's request for upgrade of his UD.

2.  His last period of service includes three instances of NJP and 546 days of lost time due to being AWOL and in civil confinement.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD.

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)                                         AR20100027876



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ABCMR Record of Proceedings (cont)                                         AR20100027876



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