IN THE CASE OF:	  

		BOARD DATE:	  10 July 2012

		DOCKET NUMBER:  AR20120001225 


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 under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states he is an only son and his mother had a nervous breakdown when he was drafted over 40 years ago.

3.  The applicant provides no additional evidence.

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's records show he was inducted into the Army of the United States on 20 January 1969 and he held military occupational specialty 11B. 

3.  On 15 May 1969, he was issued orders assigning him to the U.S. Army Replacement Station, Oakland, CA, with a report of 8 June 1969 for further assignment to Vietnam.

4.  On 8 June 1969, he was reported as absent without leave (AWOL) from his assigned unit and on 18 August 1969 he was dropped from the rolls.

5.  On 26 July 1971, he was returned to military control at Fort Leonard Wood, MO. 

6.  He was subsequently notified by his immediate commander that separation action was being initiated against him under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge-Misconduct), section VII, for excessive AWOL.

7.  On 11 August 1971, he acknowledged receipt of the notification of his proposed discharge action and of the procedures and rights that were available to him.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to him.  He further acknowledged he understood if he were issued an undesirable discharge he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement in his own behalf.

8.  On 21 September 1971, his immediate commander recommended the applicant's separation under the provisions of Army Regulation 635-206, section VII, with the issuance of an Undesirable Discharge Certificate.  The commander stated the applicant had been AWOL for 778 days and due to his negative attitude and excessive period of AWOL, he should be discharged as soon as possible.

9.  On 22 September 1971, his senior commander recommended approval of his separation action with the issuance of an Undesirable Discharge Certificate.

10.  On 6 October 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206, section VII, and directed he be issued an Undesirable Discharge Certificate.  On 21 October 1971, he was discharged accordingly.

11.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged under the provisions of Army Regulation 635-206, section VII, with an under other than honorable conditions characterization of service.  He completed 7 months and 14 days of creditable active service with 778 days (2 years, 1 month, and 18 days) of time lost due to AWOL.

12.  On 23 January 1973 and 27 September 1977, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined he had been properly discharged.

13.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and AWOL or desertion).  An undesirable discharge was normally considered appropriate.  

14.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his being AWOL for over 2 years before he was returned to military control.  Accordingly, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-206, for excessive AWOL.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20120001225





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ABCMR Record of Proceedings (cont)                                         AR20120001225



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