IN THE CASE OF:	  

		BOARD DATE:	    24 October 2013

		DOCKET NUMBER:  AR20130004405 


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.

2.  The applicant states he was denied emergency leave.  He was absent without leave (AWOL) in order to help his family in an emergency.  He was discharged because of being AWOL.

3.  The applicant provides a:

* DD Form 293 (Application for Review of Discharge)
* Standard Form 180 (Request Pertaining to Military Records)
* Personal Statement 
* Character Reference Letters (three) 

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 15 June 1970.  He completed training as a supply clerk.  

3.  The applicant entered a transient status in mid-October 1970 and thereafter was frequently AWOL, in confinement, or in pretrial confinement.

4.  He was convicted by a summary court-martial on 17 March 1971.

5.  On 7 June 1971, the applicant was informed he was being considered for elimination for unfitness.  He consulted with counsel and waived his rights to appear before and/or have his case considered by a board of officers.  He waived his right to present statements in his own behalf and be represented by legal counsel.  

6.  The commanding officer recommended separation with an undesirable discharge and the separation authority so directed.

7.  On 29 June 1971, the applicant was separated under conditions other than honorable due to frequent incidents of a discreditable nature under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability).  He had 10 months and 1 day of creditable service.

8.  There is no available evidence that the applicant ever requested emergency leave or that he had any pressing family problem.  

9.  There is no indication the applicant applied to the Army Discharge Review Board within that board's 15-year statute of limitations.

10.  The applicant's personal statement relates that, in addition to being denied emergency leave, his problems in the service were due to substance abuse.  After leaving the service he obtained a general educational development (GED) certificate and became a skilled sheet metal fabricator.  He worked at that trade until he became disabled in 2008.  He is a loyal citizen and always supports the troops.  He volunteers at various charities and food banks.  He has been clean and sober for 10 years.  

11.  The supporting statements relate:

* the writer has known the applicant for 10 years and knows him to be honest, helpful and to possess great personal integrity; the applicant is patriotic; the writer, a U.S. Marine Corps veteran who served in Vietnam, recommends upgrading the applicants original discharge
* the writer has known the applicant for 5 years and considers him to be a man of the highest integrity; the applicant helps his elderly and disabled neighbors and he is a man of great compassion and helps the writer with meals and errands
* a neighbor states the applicant is willing to help him and others; he is a loyal friend; the applicant volunteers in community activities and personally helps others

12.  Army Regulation 635-212, in effect at the time, provided the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a stated an individual was subject to separation for unfitness for frequent incidents of a discreditable nature with civil or military authorities and for several other conditions.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel:

	a.  Paragraph 3-7a states 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 states 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 has not submitted any probative evidence or a convincing argument in support of the request.

2.  The applicant's record shows ample evidence of frequent incidents of a discreditable nature so as to warrant separation with an undesirable discharge.  There is no evidence of significant redeeming service.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

4.  The applicant's post-service activities and the support of his friends are noted; however, these matters are not so meritorious as to warrant the requested relief.

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)                                         AR20130004405





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ABCMR Record of Proceedings (cont)                                         AR20130004405



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