. IN THE CASE OF: BOARD DATE: 27 JUNE 2008 DOCKET NUMBER: AR20080004056 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, that his undesirable discharge be upgraded to a general or an honorable discharge. 2. The applicant states, in effect, when he joined the Army he was guaranteed the military occupational specialty (MOS) 11B (Light Weapons Infantry). He states that after completing his basic combat training (BCT) and advanced individual training (AIT) he was sent to the Officer Candidate School (OCS) prep school. He declined the training at OCS prep school and he had asked to return to Infantry. He was then transferred to an office job in the Adjutant General (AG) branch, rather than to his guaranteed MOS, Infantry. He joined the Army with the intention of serving his country as an Infantryman, but he was ignored and denied so he started going absent without leave (AWOL). 3. He further states, in effect, since he was discharged from the Army he completed a gunsmith school and had a gun repair shop years ago. He states because of the Patriot Act and his record of AWOL he cannot even go to Canada for a day because of his military record. He states he was never a deserter; that he was AWOL. He also believes his records are wrong because his MOS was changed without him signing a waiver or agreeing to change it. 4. He continues that he was cheated out of his enlistment agreement. He lost his records when his parent's home was burnt down many years ago. He concludes that if he was allowed to stay in the Infantry he would have retired there because he likes that life and the training. 5. The applicant does not provide any additional documentation. 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's military personnel record shows he enlisted in the Regular Army on 12 December 1966. He completed the necessary training and was awarded the MOS 11B. His record shows he attended BCT and AIT at the U.S. Army Training Center, Fort Lewis, Washington. 3. On 25 January 1967, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for leaving his appointed place of duty (BCT) without authority and for wrongfully appearing at the Post Exchange wearing improper uniform. 4. On 25 February 1967, the applicant accepted NJP under the provisions of Article 15, UCMJ, for disorderly conduct in that he broke a light bulb causing the glass to enter a Soldier's eye and for entering a senior Noncommissioned Officer’s (NCO) room to disrupt his bunk bed. 5. On 2 June 1967, the applicant accepted NJP under the provisions of Article 15, UCMJ for being AWOL during the period of 16 May 1967 to 21 May 1967. 6. On 20 September 1967, the applicant was convicted by a special court-martial for being AWOL during the period from 19 June 1967 to 10 August 1967. His punishment consisted of confinement for six months (suspended until 18 March 1968), forfeiture of $60.00 per month for six months, and reduction to private/pay grade E-1. 7. On 14 February 1968, he was convicted by a second special court-martial for being AWOL during the period from 1 October 1967 to 6 December 1967 and from 13 December 1967 to 19 January 1968. His punishment consisted of confinement for six months and forfeiture of $65.00 per month for six months. 8. On 26 February 1968, the applicant was evaluated by a psychiatrist and was found to be responsible for his own behavior, and knowing the difference between right and wrong and adhering to the right. 9. On 28 February 1968, the applicant was informed by his commander of his intent to recommend a discharge for unfitness, his right to counsel, his right to an administrative hearing by a board of officers, his right to submit a statement in his own behalf, and his right to be represented by counsel at a hearing. The commander also explained the applicant's rights in conjunction with his recommendation and the effect of waiving those rights. 10. The applicant acknowledged that he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. 11. On 8 March 1968, the separation authority approved the applicant's discharge recommendation and directed that the applicant be issued an Undesirable Discharge Certificate. On 13 March 1968, the applicant was discharged. The DD Form 214 he was issued shows he completed 7 months and 18 days of Net Service This Period and had accrued 224 days time lost. 12. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations. 13. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate. 14. Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. 15. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant requests that his undesirable discharge be upgraded to a general or an honorable discharge. 2. The evidence shows the applicant accepted NJP for leaving his appointed place of duty, without authority and for wrongfully appearing at the Post Exchange wearing improper uniform; disorderly conduct; and being AWOL. 3. The available evidence also shows the applicant was AWOL during the period from 16 May 1967 to 21 May 1967; from 19 June 1967 to 10 August 1967; from 1 October 1967 to 6 December 1967; and from 13 December 1967 to 19 January 1968. As such, an undesirable discharge was equitable and proper. 4. The statements that the applicant made are noted; however, there is no evidence in his personnel record that shows he was sent to OCS prep school and his MOS was changed from Infantry to AG. Also, his post-service achievements are not sufficient to warrant an upgrade of a properly issued discharge. 5. In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit sufficient evidence that would satisfy this requirement. Therefore, 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) AR20080004056 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080004056 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1