IN THE CASE OF:	  

		BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20110003153 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states in 1955 he was a selfish, immature 19 year old who had no concept or understanding of responsibility.  However, he is now a humbled 65 year old man who would appreciate a change in his discharge and the opportunity to obtain veteran's benefits. 

3.  The applicant provides no supporting documents with his application.

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 born on 16 December 1945 and enlisted in the Regular Army in Oklahoma City, Oklahoma on 6 April 1965 for a period of 3 years and training in the administrative career management field.  He was transferred to Fort Polk, Louisiana to undergo his training.

3.  He completed basic training and remained at Fort Polk, LA to undergo advanced individual training (AIT) as a clerk-typist starting on 5 June 1965.  He went absent without leave (AWOL) from 30 June to 16 November 1965 until he was returned to military control at Fort Sill, Oklahoma and charges were preferred against him.  

4.  On 6 December 1965, he was convicted by a court-martial pursuant to his plea of being AWOL from 30 June until 16 November 1965.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.  

5.  He remained at Fort Sill and underwent AIT as a cannoneer and on 
27 September 1966 he was again convicted by a court-martial pursuant to his plea of being AWOL from 28 June to 9 September 1966.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.  

6.  On 20 January 1967, he was convicted by a court-martial pursuant to his plea of being AWOL from 13 December 1966 to 16 January 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

7.  On 19 June 1967, he was transferred to Fort Carson, Colorado.  On 28 November 1967, he was convicted by court-martial pursuant to his plea of being AWOL from 2 August to 21 October 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

8.  The facts and circumstances surrounding the applicant’s administrative discharge are not in the available records as they were loaned to the Department of Veterans Affairs in Muskogee, Oklahoma in 1996.  However, the available evidence shows he was discharged on 10 January 1968 under the provisions of Army Regulation 635-212 for unfitness due to an established pattern of shirking with an undesirable discharge.  He had served 10 months and 14 days of active service and had 690 days of lost time due to being AWOL and in confinement.

9.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge under the Special Discharge Review Program (SDRP) on 9 May 1977.  On 7 September 1977, the ADRB determined the applicant did not meet the criteria for an upgrade of his discharge under the SDRP and voted unanimously to deny his request for an upgrade of his discharge.  

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.  It provided, in pertinent part, that members who displayed an established pattern of shirking were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

2.  The applicant's contention has been considered.  However, his repeated misconduct and his undistinguished record of service are not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply did not rise to the level of a general or an honorable discharge and the Board does not upgrade discharges simply for the purpose of qualifying individuals for benefits.

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)                                         AR20110003153



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ABCMR Record of Proceedings (cont)                                         AR20110003153



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