RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 April 2008
	DOCKET NUMBER:  AR20070013665 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr.  Rial D. Coleman

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Peter B. Fisher

Member

Mr. Jeffrey C. Redmann

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, to have his discharge and characterization of service upgraded.

2.  The applicant states, in effect, that his discharge should be upgraded from under other than honorable conditions to general under honorable conditions.  He adds that during the time of his service, his father's health was deteriorating and he felt obligated to go home to help his family.  The applicant continues that he requested help and his chain of command recommended approval of his request for a hardship discharge.  The applicant concludes that his pre-separation physical acknowledged that he was suffering from nervousness and depression which affected his ability to make clear decisions.

3.  The applicant provides DA Form 2476 (Request for Separation due to Hardship or Dependency), DA Form 2496 (Disposition Form), USAARMC [United States Army Armor Center] Form 1172 (Report of Mental Status Evaluation), the front side of Standard Form 93 (Report of Medical History), and three one-page character reference letters.

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 was inducted into the Army of the United States at the age of 19 years and 11 months, on 16 February 1971.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded the military occupational specialty 63C (Tracked Vehicle Mechanic).  The highest rank he attained while serving on active duty was private first class (PFC)/pay grade E-3.  The applicant was discharged in the rank of private (PVT)/pay grade E-1 on 21 April 1972.

3.  A letter dated 6 April 1971, contains the Adjutant General of the Army's reply to a letter that the applicant's father had written to the Secretary of Defense regarding his separation from active military service.  The letter shows that the Adjutant General, in effect, acknowledged that there were many families suffering hardships which could be eased by a Soldier's separation from active military service.  He continued that although Army policy provided for the separation of Soldiers when a burden of hardship on members of their families arose after their entry into active military service, a bona fide hardship does not necessarily exist solely because of altered income or because the Soldier is separated from the family or must suffer the inconveniences normally incident to military service.  The Adjutant General further continued that he had advised the applicant's chain of command of his father's concerns and advised that they should counsel the applicant regarding the Army's policy governing hardship or dependency separation and afford him an opportunity to submit an application, if he so desired.

4.  Headquarters, United States Army Armor School, Fort Knox, Kentucky Special Orders 185, dated 27 August 1971, reassigned the applicant to the United States Replacement Station located at Fort Lewis, Washington with an ultimate assignment to the United States Army Vietnam Transit Detachment with a reporting date of 22 September 1971.

5.  DA Form 2496, dated 30 August 1971, shows the applicant requested a compassionate reassignment to Fort Knox, Kentucky.  The form further shows the basis for the applicant's request was that his parents were in poor health and to be closer to his home in order to provide assistance to his family.

6.  Headquarters, United States Army Armor School, Fort Knox, Kentucky Special Orders 191, dated 3 September 1971, revoked the portion of Special Orders 185, dated 27 August 1971, pertaining to the applicant's reassignment to the United States Army Vietnam Transit Detachment.

7.  DA Form 2496-1 (Disposition Form), dated 1 November 1971, shows the applicant elected Fort Knox, Kentucky as his assignment preference within the continental United States (CONUS).

8.  Headquarters, United States Army Armor School, Fort Knox, Kentucky Special Orders 234, dated 8 November 1971, reassigned the applicant to Company B, 3rd Battalion, School Brigade of the United States Army Armor School, Fort Knox, Kentucky with a reporting date of 10 November 1971.

9.  DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 7 December 1971, shows the applicant departed absent without leave (AWOL) on 6 December 1971.

10.  DA Form 188 (Extract Copy of Morning Report), dated 7 January 1972, shows the applicant returned from AWOL and surrendered himself to military control on 3 January 1972.  This form further shows the applicant departed AWOL on 5 January 1972 and was dropped from the rolls of his unit effective 
5 January 1972.

11.  DA Form 3545 (Deserter Wanted by the Armed Forces), dated 11 January 1972, notified military and civilian law enforcement authorities that the applicant was a deserter wanted by the armed forces.

12.  DA Form 268, dated 20 January 1972, and Headquarters, United States Army Armor School, Fort Knox, Kentucky Special Orders 14, dated 21 January 1972 show the applicant was placed in pre-trial confinement pending Special Court-Martial charges for being AWOL.

13.  Headquarters, School Brigade, United States Army Armor School, Fort Knox, Kentucky Special Court-Martial Order 2, dated 23 February 1972, shows that the applicant appeared before a Special Court-Martial on 24 January 1972.  The order further shows the applicant was found guilty of being AWOL during the periods 6 December 1971 through 3 January 1972 and 5 January 1972 through 19 January 1972.  The applicant was sentenced to be reduced from private first class/pay grade E-3 to private/pay grade E-2 and to be restricted to the company area for thirty days.  The sentence was adjudged on 16 February 1972.

14.  DA Form 2496, dated 16 February 1972, shows that the applicant's commander requested that he be transferred to another unit for the purpose of rehabilitation.  The commander stated that the applicant had been sentenced by a Special Court-Martial for being AWOL for 44 days out of the 71 days that he had been assigned to his current unit.  He continued that the applicant had been dropped from the unit's rolls as a deserter once and returned to duty only to be placed in confinement to insure his presence for trial.  The commander stated he felt the applicant would have a better opportunity to rehabilitate in a different environment under different supervision.  The commander continued that if the rehabilitative transfer did not produce drastic changes in response from the applicant, he would recommend elimination from the Service under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability). He concluded that the applicant's conduct had been completely unsatisfactory.

15.  DA Form 2627 (Summarized Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 29 February 1972, shows the applicant accepted nonjudicial punishment for violating Article 134 of the UCMJ by breaking restriction on 26 February 1972.

16.  Headquarters and Headquarters Company, School Brigade, United States Army Armor School, Fort Knox, Kentucky Statement of Counseling, dated 
1 March 1972, essentially shows the applicant's first sergeant counseled him on numerous occasions regarding constant problems in the areas of military courtesy, appearance, and AWOL.  The first sergeant pointed out that his efforts to counsel the applicant had produced no change in his behavior.  The first sergeant concluded that if a rehabilitative transfer did not produce desired changes in response from the applicant, he would recommend elimination from the Service under the provisions of Army Regulation 635-212.

17.  Headquarters, School Brigade, United States Army Armor School, Fort Knox, Kentucky Special Orders 45, dated 1 March 1972, directed the rehabilitative transfer of the applicant to reassigned the applicant to Company E, 1st Battalion, School Brigade, United States Army Armor School, Fort Knox, Kentucky with a reporting date of 3 March 1972.

18.  DA Form 2627, dated 15 March 1972, shows the applicant accepted nonjudicial punishment for violating Article 86 of the UCMJ by being AWOL during the period 8 March 1972 through 13 March 1972.

19.  Company E, 1st Battalion, School Brigade, United States Army Armor School, Fort Knox, Kentucky Memorandum, dated 20 March 1972, shows the applicant's commander informed him that he was being recommended for separation from the Service under the provisions of Army Regulation 635-212.  The memorandum also shows that the commander advised the applicant of his rights to present his case before a board of officers, submit statements on his own behalf, be represented by counsel of his own choosing or detailed counsel, and to waive the aforementioned rights in writing.  The memorandum concludes with the applicant's acknowledgement of his understanding the fact that he was being considered for elimination from the Service and his available rights.  The applicant elected to waive all of his rights and signed the memorandum.

20.  DA Form 2496, dated 20 March 1972, shows the applicant's unit commander requested that he be physically and psychiatrically examined as required by Army Regulation 635-212 prior to submission of a recommendation that he be administratively separated from the service.

21.  USAARMC Form 1172, dated 20 March 1972, was rendered in conjunction with the applicant's pre-separation process at the request of his commander.  The form shows the examining doctor's opinion of the applicant's mental status at the time.  The doctor opined that although his mood was depressed and his thinking process was confused, the overall impression was that the applicant did not display any significant mental illness.  He further opined that the applicant was mentally responsible, was able to distinguish right from wrong, had the ability to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

22.  USAARMC Form 1479 (Individual's Statement of Waiver), dated 21 March 1972, shows the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant waived all of his rights.  The applicant acknowledged he understood that if his discharge 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

23.  The applicant's chain of command unanimously recommended that he be eliminated from service under the provisions of AR 635-212 and that he be issued an Undesirable Discharge Certificate.  On 13 April 1972, the separation authority directed that the applicant be reduced to the grade of private/pay grade E-1, that he be discharged under the provisions of AR 635-212 because of unfitness, and that he be furnished an Undesirable Discharge Certificate (DD Form 258A.

24.  The record shows that on 21 April 1972, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the applicant completed a total of 11 months and 23 days of creditable active military service, an under other than honorable conditions character of service, and 75 days lost due to AWOL and confinement.

25.  The applicant's record contains no documentary evidence of a mental condition either prior to his induction or during his period of active duty. 


26.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.  On 2 August 2007, the applicant submitted a DD Form 
293 (Application for Review of Discharge from the Armed Forces of the United States) requesting an upgrade of his discharge.

27.  Department of the Army Review Boards Agency, Support Division, Saint Louis, Missouri Letter, dated 23 August 2007, informed the applicant that his 
DD Form 293 could not be processed because the statutory period for appeals prohibits the ADRB from processing applications after 15 years from the date of discharge or release from active duty.  The letter also informed the applicant that he may appeal his discharge by applying to the Army Board for Correction of Military Records.

28.  The applicant provides a copy of DA Form 2476, dated 30 March 1971, showing his request for separation due to hardship or dependency.  He also provides a one page document showing that his battalion and brigade level commander's recommended approval of his request on 5 and 7 April 1971, respectively.  There are no copies of these documents in the applicant's available records.

29.  The applicant provides a copy of the previously mentioned DA Form 2496, dated 20 March 1972, showing his unit commander requested that he be physically and psychiatrically examined as required by Army Regulation 
635-212 prior to submission of a recommendation that he be administratively separated from the service.

30.  The applicant also provides a copy of the previously mentioned USAARMC Form 1172, dated 20 March 1972, that was rendered in conjunction with the applicant's pre-separation process at the request of his commander.  The form shows the examining doctor's opinion of the applicant's mental status at the time.

31.  The applicant further provides a copy of the front page of Standard Form 93, dated 20 March 1972, that shows he indicated that he had suffered from some sort of nervous trouble by checking the appropriate block in Item 11 (Have You Ever Had or Have You Now (Please check at the left of each item)).

32.  The applicant provides three one-page character reference letters which essentially state that he is an honest, well respected, good hearted, helpful, and religious man.

33.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  The regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent involvement in incidents of a discreditable nature with civil or military authorities; (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

34.  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.

35.  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 and characterization of service should be upgraded from under other than honorable conditions to general under honorable conditions.

2.  There is no documentary evidence in the applicant's record of a mental condition either prior to his enlistment or during his period of active duty.

3.  The record shows that although the applicant's request for separation due to hardship or dependency was disapproved, in an attempt to improve his situation, his chain of command had him removed from assignment to the Republic of Vietnam and granted him a compassionate reassignment to his assignment preference in order to be stationed closer to his family's home.  Less than one month after arriving at his new duty station, the applicant went AWOL and remained absent for a period of 29 days.  He only returned to military control for two days prior to departing AWOL again for a period of 14 days which resulted in him being dropped from the active duty rolls of his unit.

4.  In another display of compassion, the applicant's chain of command approved a rehabilitative transfer in order to afford him yet another opportunity to improve the quality of his service and adapt to the military lifestyle.  Within five days of reporting to his new unit, the applicant departed AWOL for a period of five days.

5.  The applicant’s record reveals a disciplinary history that includes being AWOL on five occasions, failing to be at his place of duty at the appropriate time on numerous occasions, breaking restriction, and problems in the areas of military courtesy and appearance.  His actions displayed a blatant disregard for authority and unfitness for continued service in the military.

6.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__PBF__  _JCR___  _ENA_ ___  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.





_Eric N. Andersen___
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.