IN THE CASE OF:	  

		BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110012872 


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 his undesirable discharge (UD) be upgraded to a general discharge (GD).

2.  The applicant states his family was unable to live on his basic pay.  He went AWOL (absent without leave) several times in order to attempt to rectify his family problems.  Since his discharge he has worked hard to improve his situation and make a better life for his family as attested to by the multiple training certificates he provides.

3.  The applicant provides copies of his DD Form 214 (Report of Transfer or Discharge) and 22 certificates of completion of courses ranging from computer programming through rage control. 

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 on 8 August 1967.  He completed training and was awarded military occupational specialty 76W (Petroleum Storage Specialist).

3.  He received three court-martial convictions for AWOL, for about 2 months, 3 months, and 4 and 1/2 months respectively.  Two of the sentences included periods of confinement. 

4.  Shortly after his release from his last period of confinement, his command initiated separation action on 6 February 1970 under Army Regulation 635-212 for unfitness.

5.  On 10 February 1970, after consulting with counsel, the applicant waived his rights to have his case considered by a board of officers, representation by counsel, or to submit a statement on his own behalf. 

6.  The discharge authority approved the UD on 24 February 1970.

7.  The applicant was discharged on 18 March 1970 with a UD.  He had 1 year, 5 months, and 17 days of creditable service with 1 year, 2 months, and 24 days of lost time (342 days of AWOL and 107 days of confinement). 

8.  The applicant's record records nine conduct and efficiency ratings.  The first two rated him as "excellent," two rated him as “good,” and five rated him as "unsatisfactory."  He is not shown to have been awarded any personal decorations or awards.

9.  The applicant provides copies of 22 certificates for completion of a number of training classes between 1993 and 2010.  Many were issued by or through the California Bureau of Corrections inmate training program.

10.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, a UD was normally considered appropriate.
12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the policies and procedures for enlisted personnel separations.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that following his being drafted, his family was unable to live on his basic pay.  He went AWOL several times in order to attempt to rectify his family problems.  Since his discharge he has worked hard to improve his situation and make a better life for his family as attested to by the multiple training certificates he provides.

2.  The applicant was court-martialed on three occasions for significant periods of AWOL with his periods of lost time almost equal to his periods of creditable service.  The majority of his conduct and efficiency ratings were reported as "unsatisfactory" showing that even his creditable period of service did not meet standards for a general discharge. 

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service. 

4.  While the applicant has taken a number of classes to better himself these activities are not so mitigating as to warrant an upgrade of his discharge.

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)                                         AR20110012872





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ABCMR Record of Proceedings (cont)                                         AR20110012872



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