BOARD DATE:	  11 June 2013

		DOCKET NUMBER:  AR20120020452 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states, in effect:

* he has been gainfully employed subsequent to his release from active duty (REFRAD)
* he has no criminal record other than his periods of absence without leave (AWOL) from military service
* the type of discharge he received hurts his standing in civilian life
* he has been a model citizen since his discharge from the military
* he is getting older and he needs his records changed to complete his life
* an upgrade of his discharge will also make him a better person

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 Army on 9 January 1968.

3.  On 17 February 1968, he accepted nonjudicial punishment (NJP) for disorderly conduct.  

4.  On 28 June 1968, the applicant was convicted by a special court-martial of being AWOL from 3 to 30 May 1968 and from 13 to 17 June 1968.  He was sentenced to confinement at hard labor and a forfeiture of pay.

5.  He was convicted by a special court-martial on 31 January 1969 of being AWOL from 19 to 21 October 1968 and from 24 October 1968 to 7 January 1969. He was sentenced to confinement at hard labor and a forfeiture of pay.

6.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was also AWOL from 15 to 16 October 1968 and from 12 February 1969 to 
19 March 1970.  He was placed in pretrial confinement from 2 April until 27 May 1970.

7.  On 1 May 1970, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) for misconduct.  He acknowledged receipt of the notification.  After counseling with counsel, he waived his rights and he elected not to submit a statement in his own behalf.  

8.  The appropriate authority approved the recommendation for discharge on 19 May 1970 and directed the issuance of an Undesirable Discharge Certificate.  On 4 June 1970, the applicant was discharged under the provisions of Army Regulation 635-206, due to misconduct.  He completed 6 months and 7 days of total active service.  He had approximately 686 days of lost time due to AWOL and confinement.  He received an Undesirable Discharge Certificate.

9.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

10.  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 absence without leave or desertion).  Paragraph 33 of the regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of   1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Personnel Separations-Enlisted Personnel)) sets forth the basic authority 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 applicant's contentions have been noted.

2.  The applicant's records show that he accepted NJP for disorderly conduct and he was twice convicted by a special court-martial for being AWOL.  He had approximately 686 days of lost time due to AWOL and confinement.  Considering his numerous offenses, the type of discharge he received appropriately reflects his overall record of service.

3.  The applicant's contentions concerning his post-service conduct are noted.  However, his subsequent standing outside of the military is not a proper basis to upgrade his discharge.

4.  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)                                         AR20120020452





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ABCMR Record of Proceedings (cont)                                         AR20120020452



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