IN THE CASE OF:	  

		BOARD DATE:  24 May 2012

		DOCKET NUMBER:  AR20110022372 


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 honorable.

2.  The applicant states:

	a.  He was honorably discharged in August 1969.  He was apprehended at his place of employment on 30 April 1976 and charged with being absent without leave (AWOL).

	b.  He was transported to Fort Dix, New Jersey where he was notified that there were no records or proof that he had been AWOL from the Army for about 8 years.  He was given the option of waiting about a week to get a disposition on his status, or signing a form and leaving immediately.  Because he had a family to support he chose to sign the form and leave.

	c.  Over the past 34 years, he has notified the National Personnel Records Center (NPRC), the U.S. Army Human Resources Command (HRC), and various installations in an effort to retrieve his records and to clear up his situation.

	d.  HRC continues to inform him that his records were burnt in 1973, stating that his service ended in 1963.  However, he has a yearbook photo showing him with the 2nd Airborne Battle Group, 501st Infantry Regiment in 1964.

	e.  NPRC only provided the records he has submitted with this application.

	f.  He contends that he has no records of what his final discharge was except for an administrative discharge memorandum dated 2 June 1976.  He wants clarification of his discharge and confirmation that it is honorable.

3.  The applicant provides the following documentation:

* NPRC memoranda dated 31 December 2010, 19 May 2011, and 25 July 2011
* A handwritten statement of his Army post assignments
* An Acknowledgment of Understanding of Service Requirements, dated    15 September 1960
* DD Form 4 (Enlistment Record) dated 15 September 1960
* Orders to Active Duty Training, dated 21 June 1961
* DD Form 220 (Active Duty Report) dated 17 July 1961
* A partial reenlistment document dated 11 August 1961
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 10 August 1963
* Request for short discharge and immediate reenlistment in the Regular Army, dated 22 July 1963
* DD Form 4, dated 11 August 1963
* Statement of Understanding, dated 12 August 1963
* 1964 Yearbook (9 pages) showing his photo
* DD Form 1569 (Incident/Complaint) dated 30 April 1976
* Letter, Fort Dix, New Jersey, dated 2 June 1976 with enclosures

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.  On 15 September 1960, the applicant enlisted in the U.S. Army Reserve.  He was ordered to active duty for training with a report date of 15 July 1961.

3.  On 10 August 1961, the applicant was discharged for the purpose of enlisting in the Regular Army.  He was issued a DD Form 214 indicating that he held the rank of private, pay grade E-2 and had completed 26 days of creditable active duty for training.  His characterization of service was honorable.

4.  On 11 August 1961, the applicant enlisted in the Regular Army for a period of 3 years.  He completed his initial training and was awarded military occupational specialty 111.17 (Light Weapons Infantryman).

5.  On 20 September 1962, the applicant was advanced to specialist four, pay grade E-4.

6.  On 10 August 1963, the applicant, who was then located at Fort Campbell, Kentucky, was discharged early for the purpose of immediate reenlistment in the Regular Army.  He had completed a total of 2 years, 10 months, and 26 days of creditable active duty service.

7.  On 11 August 1963, the applicant reenlisted for a period of 6 years.  This established the expiration of his term of service (ETS) as 10 August 1969.

8.  A Federal Bureau of Investigation record indicates that on 27 February 1969, the applicant was arrested by the Phenix City, Alabama Police Department for uttering a worthless check.  He was fined $115.00 and given 30 days confinement at hard labor.

9.  Special Court-Martial Order Number 219, Fort Benning, Georgia, dated 
15 August 1969, indicates that the applicant, identified as a sergeant, pay grade E-5, was convicted of being AWOL from on or about 7 January to 13 June 1969 (156 days). He was reduced to the rank of private, pay grade E-2.

10.  On 10 May 1976, charges were preferred under the Uniform Code of Military Justice (UCMJ) for AWOL for the period from on or about 13 August 1969 to on or about 30 April 1976 (2,450 days).

11.  On 11 May 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

12.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

13.  On 24 May 1976, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 2 June 1976, the applicant was discharged accordingly.  He had completed a total of 7 years, 8 months, and 24 days of creditable active duty service and had 2,450 days of time lost subsequent to the normal expiration of his term of service.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

15.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days and terminated by apprehension is a dishonorable discharge and confinement for 1 year and 6 months.

16.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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 contends that his undesirable discharge should be upgraded because he was discharged in 1969.  He implies that he was not AWOL.

2.  The applicant's contention that he was discharged in 1969 is untrue.  His 
10 August 1969 ETS would have been adjusted by approximately 6 months to February 1970 based on his 30 days in jail for the worthless check and the 156 days of AWOL from January to June 1969.  He was subsequently AWOL from 
13 August 1969 to his apprehension in April 1976.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  Based on his lengthy AWOL, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

5.  There is no error or injustice in the applicant's case.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110022372





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ABCMR Record of Proceedings (cont)                                         AR20110022372



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