BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120007999 


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 an upgrade of his undesirable discharge to a general discharge.

2.  He states his wife and children were under extreme financial hardship during that time and according to draft laws he should have been exempt from the draft. 

3.  He provides an internet printout related to draft classifications.

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 Air Force on 13 July 1964.  He was given a general discharge from the Air Force on 6 January 1965.  He completed 5 months and 24 days of active service.  
3.  A DD Form 47 (Record of Induction) in his military records show he was voluntarily inducted into the Army on 11 April 1968.  Item 6 (Marital Status) on this form shows the box for single is checked.

4.  A DD Form 1584 (National Agency Request Check), dated 16 April 1968, shows he was married.  The date of his marriage is unknown. 

5.  He was awarded military occupational specialty 64A (Light Vehicle Driver).  The highest rank/grade he attained was private/E-2.

6.  His DA Form 20 (Enlisted Qualification Record) shows he volunteered for airborne training.

7.  Special Court-Martial Order Number 187 shows, on 14 February 1969, he pled guilty and was found guilty of being AWOL during the period on or about 11 October 1968 to 21 January 1969.

8.  Special Court-Martial Order Number 927 shows, on 6 August 1969, he pled guilty and was found guilty of being AWOL during the period on or about 22 March to 3 July 1969.

9.  On 18 February 1970, a stockade chaplain stated the applicant was 23 years of age and he was married with two children.  The applicant had indicated the size of his family made it impossible for them to survive on what he was paid and that he had attempted to apply for a hardship discharge without success.  His attitude towards the Army was that his family needed him more than the Army.

10.  On 10 March 1970, the Correctional Holding Detachment Commander counseled the applicant regarding his proposed action to separate the applicant from the U.S. Army under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) due to unfitness.  He stated the basis for his action was that the applicant had two special courts-martial for violation of Article 86, Uniform Code of Military Justice and he had approximately 516 days of bad time due to being absent without leave (AWOL) and confinement.  He stated that due to the applicant's chronic violation of Article 86, his dislike of the military service, lack of self-motivation, and negative attitude toward the military, he would continue to violate this Article if he was not discharged under the provisions stated therein.  He also advised the applicant of his rights. 

11.  On 10 March 1970, he acknowledged he was advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-212.  He acknowledged he understood if an undesirable discharge under conditions other than honorable was issued to him, he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  The applicant then waived his rights.  He did not submit a statement on his own behalf.

12.  On 23 March 1970, the separation authority approved the applicant's elimination from the service because of unfitness.  He directed the applicant be given an Undesirable Discharge Certificate.

13.  On 26 March 1970, he was given an undesirable discharge under the provisions of Army Regulation 635-212.  He was assigned a separation program number of 386 (unfitness, an established pattern for shirking).  His DD Form 214 shows he completed a total of 5 months and 29 days of active military service with 532 days of time lost.

14.  His records are void of any evidence showing that he requested discharge due to a family hardship.

15.  He submits a printout taken from the internet showing a list of some military draft classifications.  Highlighted in yellow on this list is the entry "III-A - Extreme hardship deferment, or registrant with a child."

16.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness.  Paragraph 6 stated an individual was subject to separation for unfitness due to an established pattern for shirking.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

18.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

19.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.
20.  A draft classification of III-A was given to a registrant with a child or children; or registrant deferred by reason of extreme hardship to dependents.

21.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his wife and children were under extreme financial hardship during the time he was in the military and that he should have been exempt from the draft based on his status are noted.  However, his DD Form 47 shows he was single at the time he "volunteered' for the draft.  The Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, although there are conflicting documents in his military records regarding his marital status, absent evidence to the contrary it must be presumed that what the Army did was correct under the circumstances at the time of his induction.  Therefore, whether he could have been exempted or deferred from the draft or not is not a basis to change a properly-issued discharge.

2.  His records are void of any evidence he unsuccessfully applied for a hardship discharge, presumably because "the size of his family made it impossible for them to survive on what he was paid."  

3.  He was discharged under the provisions of Army Regulation 635-212 by reason of unfitness, an established pattern for shirking.  He was convicted by special court-martial twice for being AWOL extended periods of time.  His records show he accrued a total of 532 days of time lost.  

4.  Based on the applicant's misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory. 
 
5.  In view of the foregoing, 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)                                         AR20120007999



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ABCMR Record of Proceedings (cont)                                         AR20120007999



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