RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  8 May 2008
	DOCKET NUMBER:  AR20080000663 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, that his discharge be upgraded.

2.  The applicant states, in effect, that he served until the Army said he was not able.  

3.  The applicant provides no additional documentary evidence in support of this 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 are incomplete; however, there is sufficient evidence available to show that he enlisted in the Regular Army on 13 August 1969. The applicant's record shows that he completed basic combat training but did not complete his advance individual training.  The highest rank he attained while serving on active duty was private/pay grade E-1. 

3.  The applicant's records do not show any significant acts of valor during his military service.

4.  Summary Court-Martial Number 129, dated 1 December 1969 shows the applicant was found guilty of being absent without leave (AWOL) during the period 17 October 1969 through 11 November 1969.  The applicant was sentenced to restriction and to hard labor without confinement for 45 days.  The applicant's sentence included a forfeiture of $50.00 pay per month for 1 month and confinement to hard labor for 30 days. 


5.  Special Court-Martial Order Number 380, dated 27 October 1970 shows the applicant pled guilty on 25 September 1970 and was convicted of being AWOL during the period 28 April 1970 through 19 June 1970.  The applicant's sentence included confinement at hard labor for thirty days and reduction to the rank of private/pay grade E-1. 

6.  On 1 April 1971, the applicant was referred to the Mental Hygiene Consultation Division, Fort Riley, Kansas for a psychiatric evaluation.  The examining psychiatrist stated that a review of the applicant's paramilitary and military history indicated faulty judgment, non-commitment to productive goals, incapacity to respond to rehabilitative efforts, resentment towards authority, and a tendency to go AWOL when stress would arise.  

7.  The examining psychiatrist further stated that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  The applicant did not manifest a psychosis or neurosis, and his management was the commander's prerogative.  The examining psychiatrist further stated that he believed the applicant would not adjust to military service and further rehabilitative efforts would be nonproductive.  The examining psychiatrist concluded the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

8.  On 11 March 1971, the applicant was notified of pending separation action under the provisions of Army Regulation 635-212 (Personnel Separation) by reason of unfitness.  

9.  On 12 March 1971, the unit commander recommended the applicant be separated from the service as a result of a total of 194 days of bad time and that he be issued an Undesirable Discharge Certificate.  The intermediate commander concurred with the recommendation and noted that the applicant was presently pending trial by Special Courts-Martial but charges would be dropped upon approval of his discharge.

10.  The applicant's record shows that he consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel. 


11.  On 16 April 1971, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-212 for unfitness with an Undesirable Discharge Certificate.  On 23 April 1971, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the applicant completed a total of 1 year, 1 month, and 27 days of creditable active military service and that he accrued a total of 194 days of time lost.  The applicant's records also show he was AWOL and/or in confinement during the periods 17 October 1969 through 10 November 1969, 28 April 1970 through 
18 June 1970, 13 October 1970 through 12 November 1970, 18 November 1970 through 28 January 1971 and 2 February 1971 through 15 February 1971.

12.  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.

13.  Army Regulation 635-212 (Personnel Separation), in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An undesirable discharge was normally considered appropriate for a repeated pattern of misconduct. 

14.  Army Regulation 635-200, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

16.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for an AWOL in excess of 30 days.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  Although the applicant's service records are incomplete, evidence of record included non-judicial punishments, a summary court-martial, and a special court-martial for being AWOL.  Additionally, his records do not show any significant acts of valor.

3.  The applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general or an honorable discharge.  Further, there is no basis for granting his request.

4.  In the absence of evidence to the contrary, it is determined that all the requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  The applicant has failed to show through the evidence submitted or the evidence available that the type of discharge issued to him was in error or unjust. Accordingly, the type of discharge directed and the reasons for discharge are appropriate considering all the facts of the case.  As a result, there is no basis to amend the applicant's separation document as requested.

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


ABCMR Record of Proceedings (cont)                                         AR20080000663



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508