BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120006381 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant did not make a statement.

3.  The applicant did not provide any 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 enlisted in the Regular Army on 2 April 1970 for a period of
3 years.  He was assigned to Fort Knox, KY for completion of training; however, 

shortly after arrival, he departed his unit in an absent without leave (AWOL) status on multiple occasions as follows:

* 14 to 16 June 1970
* 1 July to 4 August 1970
* 5 to 14 August 1970
* 14 to 18 August 1970
* 10 to 30 August 1970

3.  On 29 September 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for three instances of AWOL.

4.  He continued a pattern of short periods of AWOL including:

* 11 to 13 September 1970
* 24 September 1970
* 4 October 1970

5.   On 24 October 1970, he again departed his unit in an AWOL status and on 26 October 1970 he was dropped from the rolls (DFR) of the Army as a deserter. He was apprehended by civil authorities in Shiawassee County, MI and he was returned to military control on 12 February 1973.

6.  On 2 March 1973, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation
635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) for unauthorized absence in excess of 1 year.

7.  The applicant subsequently acknowledged receipt of the separation memorandum and consulted with legal counsel.  He was advised of the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived appearance before a board of officers, and elected not to submit a statement in his own behalf.  He further indicated he did not intend to appeal his civil conviction.

8.  The applicant further acknowledged he understood:

* he could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him
* as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life
* he had up until the date the separation authority ordered, directed, or approved his discharge to withdraw this waiver and request a board of officers

9.  On 2 March 1973, his commander initiated separation action against him by reason of unauthorized absence in excess of 1 year.  His chain of command recommended approval with the issuance of an undesirable discharge.

10.  On 21 March 1973, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 for misconduct and directed the issuance of an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 28 March 1973.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he completed 5 months and 3 days of total active service with 898 days of time lost.

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

12.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided that members who had been convicted by domestic and foreign courts of offenses that do not involve moral turpitude or do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his/her military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the chain of command.  Furthermore, Army Regulation 635-206, paragraph 33 provided that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Personnel Separations) provides the basic policies and procedures for the separation of enlisted personnel. 

	a.  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.

	b.  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 departed his unit in an AWOL status on 24 October 1970 and he was DFR'd on 26 October 1970.  He was ultimately apprehended by civil authorities and returned to military control on
12 February 1973.

2.  As required by applicable regulation at the time, his chain of command initiated separation action against him and he was notified of his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.

3.  His actions at the time brought discredit upon himself and the Army.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

4.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20120006381



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ABCMR Record of Proceedings (cont)                                         AR20120006381



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