IN THE CASE OF:	  

	BOARD DATE:	  01 July 2008

	DOCKET NUMBER:  AR20080005578 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that when he was in the Army, he requested extended leave to pursue his wife and child because she had left the State and changed his child's name.  He states that his commanding officer refused his request for extended leave so he was left with no choice but to go absent without leave (AWOL).  He states that he did not find his child for 22 years.  He states that his counsel asked him to request an undesirable discharge for the good of the service, and that he was told that he could get his discharge upgraded to honorable.  He states that when he was 49 years old he had a severe stroke that left him on a cane for 13 years; and that at age 58 he had malignant colon cancer.  He states that he never requested any kind of medical help from the Army and that he never received any pay at the time of his discharge.

3.  The applicant provides no additional documentation 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.  On 3 November 1966, the applicant was inducted into the Army in Charlotte, North Carolina.  

3.  The applicant was in basic combat training at Fort Bragg, North Carolina, when he went AWOL on 4 January 1967 and he remained absent in a desertion status until he was apprehended by civil authorities and returned to military control on 20 February 1967.  He went AWOL again on 6 March 1967 and he remained absent in a desertion status until he surrendered to civil authority and was returned to military control on 3 May 1967.

4.  On 2 June 1967, the applicant was convicted, pursuant to his pleas, by a special court-martial of being AWOL from 4 January until 20 February 1967 and from 6 March 1967 until 3 May 1967.  He was sentenced to confinement at hard labor for 3 months, and a forfeiture of pay in the amount of $25.00 per month for 3 months.  That portion of the applicant's sentence pertaining to confinement at hard labor for 3 months was suspended for 3 months on 6 June 1967 and he was returned to duty to await reassignment.

5.  The applicant went AWOL again on 7 June 1967 and he remained absent until he was apprehended by civil authorities on 15 June 1967.  He was placed in pretrial confinement on 17 June 1967.

6.  On 5 July 1967, the applicant was convicted, pursuant to his plea, by a special court-martial of being AWOL from 7 June 1967 until 15 June 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay in the amount of $37.00 per month for 6 months.

7.  On 17 July 1967, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness, due to frequent incidents of a discreditable nature with civil or military authorities. His commanding officer cited the applicant's extremely negative attitude toward military service as a basis for his recommended.  The applicant acknowledged receipt of the notification and, after consulting with counsel, he waived his right to submit a statement in his own behalf.


8.  On 24 July 1967, the applicant underwent a mental status evaluation and the attending psychiatrist diagnosed him as having a character or behavior disorder classified as antisocial personality, chronic, severe, which existed prior to service.  The attending psychiatrist also determined the applicant was mentally responsible, both to distinguish right from wrong and to adhere to the right; and that he had the mental capacity to understand and to participate in board proceedings.  The psychiatrist recommended that the applicant be administratively separated under the appropriate regulation.

9.  The appropriate authority approved the recommendation for discharge and he recommended the issuance of an Undesirable Discharge Certificate.  Accordingly, on 31 August 1967, the applicant was discharged under the provisions of Army Regulation 635-212, for unfitness, due to frequent incidents of a discreditable nature with civil or military authorities.  He had completed 2 months, and 3 days of total active service and he was furnished an Undesirable Discharge Certificate.

10.  A review of the available record fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions have been considered.  However, there is no evidence in the available record that supports his contention that he was having family problems at the time of his AWOL incidents.  Additionally, there is no evidence in his record that shows he requested and was denied extended leave as he contends or that he was told that his discharge would be upgraded if he requested a discharge for the good of the service.  

4.  The evidence of record shows that he was convicted by two special 
courts-martial of being AWOL.  He had completed 2 months and 3 days of total active service and he had over 7 months of lost time due to being AWOL and in confinement.  Considering the nature of his offenses, it does not appear that his undesirable discharge is too severe and it does appear that the type of discharge that he received is commensurate with his overall record of service.

5.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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)                                         AR20080005578



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ABCMR Record of Proceedings (cont)                                         AR20080005578



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