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ARMY | BCMR | CY2011 | 20110024428
Original file (20110024428.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110024428 


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 discharge be upgraded to an honorable discharge (HD).

2.  The applicant states he deserves an upgrade because he served his country with honor, dignity, and respect.  Further, he states he went to war in the Republic of Vietnam to serve his country with honor.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 enlisted in the Regular Army, on 26 August 1965.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11H (Infantry Direct Fire Crewman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  He was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates:

a. 24 March 1966, for intentionally violating company pass policy, on
14 March 1966.
   
   b.  22 August 1966, for being absent without leave (AWOL) during the period 17 August 1966 through 22 August 1970.

4.  On 8 February 1967, the applicant was convicted by a special court-martial,  for violation of Article 86 of the UCMJ, for being AWOL during the period 15 October 1966 through 17 December 1966.  He was sentenced to confinement with hard labor at six months and forfeiture of 60 dollars pay per month for six months.

5.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 28 April 1967, under the provisions of Army Regulation 635-212, with a character of service of under conditions other than honorable and a separation program number (SPN) of 28B (frequent incidents of a discreditable nature with civil or military authorities).  This form also shows he completed a total of 1 year, 1 month, and 15 days of creditable active service and he accrued 132 days of lost time.

6.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

7.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness or unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.

8.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-7a, provides that an HD 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.

9.  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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded to an HD was carefully considered, and it was determined that there is insufficient evidence to support this request.

2.  The applicant was punished on several occasions for acts of AWOL.  

3.  The applicant's record is void of the facts and circumstances that led to his discharge; however, the applicant was convicted by court-martial.  

4.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, which includes 138 days of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his discharge to HD or general.

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)                                         AR20110024428





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ABCMR Record of Proceedings (cont)                                         AR20110024428



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