IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110008366 


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.

2.  The applicant states he was informed the war and the draft were illegal; thus, an upgrade of his discharge is in order.

3.  The applicant provides no additional evidence 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 inducted into the Army of the United States  in Chicago, Illinois, on 10 November 1965.  He was transferred to Fort Lewis, Washington, to undergo basic and advanced individual training as a cannoneer.

3.  He was absent without leave (AWOL) on 1 May 1966.  He remained absent in desertion until 12 July 1966 when he was returned to military control in Chicago and was transferred to Fort Riley, Kansas.

4.  He was convicted of being AWOL from 1 May to 12 July 1966 by a special court-martial on 7 September 1966.  He was sentenced to confinement at hard labor for 6 months, reduction to pay grade E-1, and a forfeiture of $37.00 per month for 6 months.

5.  On 22 September 1966, the convening authority suspended that portion of the sentence to confinement at hard labor for 6 months for a period of 3 months, unless sooner vacated.

6.  The applicant departed Fort Riley on 7 October 1966 on orders directing him to report to the overseas replacement station at Oakland Army Base, California, on 25 October 1966 for further assignment to Vietnam.  He failed to report as ordered and was reported as AWOL effective 25 October 1966.

7.  He remained absent in desertion until he was apprehended by civil authorities in Chicago on 7 December 1971 and was returned to military control at Fort Riley.

8.  On 28 December 1971, the applicant's commander initiated action to discharge him from the service under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), paragraph 45b, for misconduct due to an unauthorized absence of more than 1 year.

9.  After being afforded the opportunity to consult with counsel the applicant waived all of his rights.

10.  The appropriate authority (a major general) approved the recommendation for discharge on 12 January 1972 and directed issuance of an Undesirable Discharge Certificate.

11.  Accordingly, he was discharged under other than honorable conditions on 28 January 1972 under the provisions of Army Regulation 635-206, paragraph 45b, for misconduct due to an unauthorized absence in excess of 1 year.  He completed 8 months and 8 days of active service and had 1,991 days of lost time due to AWOL and confinement.

12.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

13.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 45 provided that members who had an unauthorized absence in excess of 1 year would be processed for separation for misconduct.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  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.

15.  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.  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 applicant's overall record of service has been considered.  However, given the extensive length of his absences, his short record of service alone is not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply does not rise to the level of an honorable or a general discharge.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

3.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.



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)                                         AR20110008366



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ABCMR Record of Proceedings (cont)                                         AR20110008366



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