RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070014641 


	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

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Patrick H. McGann, Jr

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. Michael J. Flynn

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 that his discharge under honorable conditions be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he was told his discharge would be automatically upgraded within one year from the date of his discharge. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and his DD Form 257 (General Discharge Certificate) with a separation date of 1 October 1970.

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 records show he was inducted in the Army of the United States on 20 August 1969 for a period of 2 years.  He successfully completed basic combat training, but he did not complete advanced individual training.  Records show he was enroute to Fort Sam Houston, Texas for training as a Medical Specialist.  He was not awarded a military occupational specialty (MOS) and his record further shows he was in a trainee status when he was discharged. 

3.  The applicant's records reveal nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 17 October 1969 to 20 October 1969. 

4.  Records show the applicant had a history of being AWOL.  He was AWOL from 9 November 1969 to 23 August 1970 for a period of 288 days and then again from 27 August 1970 to 31 August 1970 for a 5 day period. 

5.  On 3 September 1970, the Chief of the Community Mental Health Center, Fort Devons, Massachusette interviewed the applicant.  The psychiatrist diagnosed the applicant with a sociopathic personality or an anti-social personality.  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  The examiner found no disqualifying mental defects sufficient to warrant disposition through medical channels.  

6.  The applicant's notification letter is not available for the Board to review.  Therefore, it is presumed that the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 
635-212 (Personnel Separations) for unsuitability based on his acceptance of NJP for repeated periods of AWOL and the mental health diagnosis.  It is presumed that the commander advised the applicant of his right to have his case considered by a board officers; to appear in person before a board officers; to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge, and request his case be presented before a board of officers.

7.  The applicant submitted a statement, on 17 September 1970, acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unsuitability.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.  

8.  The applicant also acknowledged that, as the result of issuance of an undesirable discharge under conditions other than honorable; he may be ineligible for many or all benefits as a veteran under both federal and state laws, and that he may expect to encounter substantial prejudice in civilian life.

9.  On 23 September 1970, the applicant's commander recommended that he be separated before the expiration of his term of service under the provisions of Army Regulation 635-212.  The commander recommended elimination based on the applicant's character and behavior disorders as determined by medical authorities. 

10.  The commander reported the applicant had received conduct and efficiency ratings of good during the period 20 August 1969 to 2 September 1969, then his records show he received unsatisfactory conduct and efficiency ratings from 27 October 1969 to 1 October 1970 due to being AWOL.  The commander reported the applicant had been counseled by a commissioned officer from the Special Processing Detachment on 25 August 1970.  

11.  On 25 September 1970, the separation authority approved the recommendation for discharge for unsuitability under the provisions of Army Regulation 635-212, waived further counseling and rehabilitation requirements, and directed that the applicant be furnished a General Discharge Certificate.

12.  On 1 October 1970, the applicant was discharged from active duty under the provisions of Army Regulation 635-212 for unsuitability.  The applicant was issued a General Discharge Certificate.  The DD Form 214 he was issued shows he had completed 3 months and 17 days of active service that was characterized as under honorable conditions.  Item 26a (Non Pay Period Time Lost) of DD Form 214 shows he had 293 days time lost.

13.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-212 (Personnel Separations), then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  In view of the applicant’s repeated periods of AWOL, he was issued a General Discharge Certificate.  

2.  The applicant contends that his discharge should have automatically been upgraded.  The Special Discharge Review Program (SDRP) did not review the applicant's record for his record did not fall within the parameters of the SDRP.  The applicant was not awarded a MOS.  He did not serve in Southwest Asia, nor had he received an honorable discharge from a previous period of enlistment, nor did he serve honorably for at least 24 months. 

3.  The reason for discharge and the characterization of service were both proper and equitable.  Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  

4.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis to grant the applicant's request. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ECP__  __MJF_  _  __PHM__  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.






____Patrich H. McGann, Jr.___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080220
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.