IN THE CASE OF: BOARD DATE: 27 MAY 2009 DOCKET NUMBER: AR20090003453 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 discharge. 2. The applicant states that he had a hearing at the Veterans Administration Regional Office and needs his discharge upgraded. 3. The applicant provides a copy of a letter, dated 27 January 20101, from the Veterans Administration Regional Office, Milwaukee, WI, in support of his application. 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 records show he enlisted in the Regular Army for a period of 3 years on 29 April 1966 and was subsequently assigned to Company B, 8th Battalion, 5th Training Brigade, Fort Knox, KY, for completion of basic combat training. 3. On 12 July 1966, the applicant departed his training unit in an absent without leave (AWOL) status. He returned to his unit on 26 July 1966. 4. On 4 August 1966, the applicant again departed his unit in an AWOL status. He returned on 16 August 1966. 5. On 28 September 1966, the applicant plead not guilty at a Summary Court-Martial to two specifications of being AWOL during the periods on or about 12 July 1966 through on or about 26 July 1966 and on or about 4 August 1966 through 16 August 1966. The Court found him guilty and sentenced him to confinement at hard labor for 20 days and a forfeiture of $25.00 pay. The sentence was adjudged on 28 September 1966 and a suspended sentence (for 2 months) was approved by the convening authority on 4 October 1966. 6. On 7 November 1966, the applicant again departed his unit in an AWOL status. He returned on 10 December 1966. 7. On 27 December 1966, the unexecuted portion of the applicant’s sentence to confinement was ordered executed. 8. On 6 January 1967, the applicant pleaded guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 7 November 1966 through on or about 9 December 1966. The Court sentenced him to confinement at hard labor for 3 months, a forfeiture of $50.00 pay for 3 months, and a reduction to private (PV1)/E-1. The sentence was adjudged on 6 January 1967 and approved on 11 January 1967. 9. On 4 April 1967, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the period on or about 2 April 1967 through on or about 3 April 1967. His punishment consisted of 5 days of restriction. 10. On 21 June 1967, the applicant pleaded guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 18 April 1967 through on or about 1 June 1967. The Court sentenced him to confinement at hard labor for one month. The sentence was adjudged on 21 June 1967 and approved on 30 June 1967. 11. The facts and circumstances surrounding the applicant's discharge are not available for review with this case. However, his record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 5 July 1967, for unfitness (Separation Number 28B--frequent involvement in incidents of a discreditable nature with civil or military authorities), under the provisions of Army Regulation 635-212 (Personnel Separations) and that he received a character of service of under other than honorable conditions. This form further confirms that he completed 3 months and 29 days of creditable active military service and had 298 days of lost time. 12. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations. 13. Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness. Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 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 contends that his discharge should be upgraded. 2. The applicant's records are void of the facts and circumstances that led to his discharge. However, the applicant's record contains a copy of his DD Form 214 which shows he was discharged for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities, under the provisions of Army Regulation 635-212, and that he received a character of service of under other than honorable conditions. 3. The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge. It is presumed in this case that the applicant's discharge was in accordance with applicable regulation and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service. 4. Based on the available record, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to a general or an honorable 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. _______ _ XXX _______ ___ 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) AR20090003453 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090003453 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1