IN THE CASE OF:	  

		BOARD DATE:	 12 December 2013 

		DOCKET NUMBER:  AR20130005985 


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 discharge to under honorable conditions (general).

2.  The applicant states he had only a month and a half to go on his three-year enlistment when he was granted emergency leave due the death of his grandmother.  He did not have enough money to return to his duty station in California so, ultimately, he turned himself in to the police who sent him to Fort Meade, Maryland.  He was court-martialed and spent time in the stockade.  He would like to have his discharge upgraded so that he can be buried in a veteran's cemetery with his Vietnam comrades and family.

3.  The applicant provides copies of one page of a DA 20 (Enlisted Qualification Record), one page of his Service Record, his DD Form 214 (Report of Transfer or Discharge), and a letter awarding him an Air Force lapel pin.

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 24 January 1961, completed training, and was awarded the military occupational specialty 293.10 (Radio Relay and Carrier Operator).

3.  The applicant served in Vietnam from 21 March 1962 through 26 January 1963 with the 232nd Signal Company, 39th Signal Battalion.

4.  The applicant's record also contains nine notices of indebtedness.

5.  The applicant was absent without leave (AWOL) on four occasions for which he received two separate special and one summary court-martial convictions. 

6.  Two of his AWOL's ended in civilian apprehension and both of the special court-martial sentences included periods of confinement.  The last special court-martial sentence, for his AWOL from 30 May 1964 through 21 July 1964, included confinement for six months.  This period of confinement commenced on 22 July 1964.  He served two months of this confinement prior to being discharged with the remainder of his sentence being vacated based on his discharge.

7.  While in confinement his command initiated separation proceedings for unfitness and afforded him a mental health evaluation which found him qualified for separation.

8.  On 24 August 1964, the applicant acknowledged the commands intent to discharge him under Army Regulation 635-208.  He waived his rights to accept counsel, to have his case heard by a board of officers, and to submit a statement on his own behalf.  He acknowledged that he could receive an undesirable discharge (UD) which would preclude him from most Veterans Administration (VA) benefits.

9.  The discharge authority approved the separation action and the applicant was discharged on 22 September 1964 with a UD. 

10.  His DD Form 214 shows that in approximately 3 years and 9 months of affiliation, the applicant had 2 years, 10 months, and 28 days of creditable service with a total of 271 days of lost time and 1 day of excess leave.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statutory limit for review.

12.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

13.  Army Regulation 635-200 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.  The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.

	b.  Paragraph 3-7b provides that a general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not so meritorious as to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant implies he only had a month and a half to go on his three-year enlistment when he failed to return from emergency leave.  In fact the applicant's last period of AWOL commenced four and a half months before he was discharged and he was incarcerated up until just prior to his discharge.  

2.  The applicant was AWOL not once but four times and, including his periods of incarceration, he had a total of 271 days of lost time.

3.  In addition to his periods of AWOL, the applicant also had a history of not paying his just debts.  The significant periods of lost time and the failure to pay his just debts combination show the applicant did not meet the level of satisfactory service to warrant a GD.
4.  The applicant's administrative separation was accomplished in compliance with the applicable regulation.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20130005985



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ABCMR Record of Proceedings (cont)                                         AR20130005985



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