IN THE CASE OF:	  

		BOARD DATE:	        13 August 2008

		DOCKET NUMBER:  AR20080007562 


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 changed to a general discharge (GD), under honorable conditions.

2.  The applicant states, in effect, that his mother was diagnosed with tuberculosis in October 1957 and she was sent to the Michigan State Tubercular Sanitarium.  In November 1957, she had her right lung removed.  He had originally received a selective service deferment because he was the sole supporter of his mother; however, in August 1969, he lost his deferment and was inducted into the Army.  He applied for a hardship discharge when he arrived at training, but it was never processed.  He initially went into an absent without leave (AWOL) status after he went home on leave and discovered the person taking care of his mother had quit.  He was court-martialed and while in confinement, beaten and sexually assaulted.  When he got out of confinement, he went AWOL again because he was frightened, and because his mother was upset about his being assaulted.   

3.  The applicant provides a copy of his DA Form 20 (Enlisted Qualification Record); a copy of a memorial service card for his father; a copy of a memorial service card for his mother; and copies of envelopes showing he mailed letters to his mother while she was in the sanitarium in October and November 1957.

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 20 August 1969, the applicant was inducted into the Army of the United States.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He attained the grade of private/E-2.  

3.  On 29 September 1969, while a trainee, the applicant requested a hardship discharge.  There is no evidence that the applicant's request was processed and/or approved.

4.  On 26 March 1970, a special court-martial convicted the applicant of being 
AWOL from 17 January – 18 February 1970.  The resultant sentence included confinement at hard labor for 1 month and a forfeiture of $50.00 pay. 

5.  The applicant again departed in an AWOL status on 23 April 1970 and remained so absent until 28 July 1970.

6.  On 4 August 1970, the applicant underwent a mental status examination and was diagnosed with an immature personality disorder.  The examiner indicated that he had a strongly negative attitude towards the Army and that he would continue to go AWOL and be a bother to the Army.  He was cleared for administrative action as deemed appropriate by his command.

7.  On an unknown date, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-212 by reason of unfitness, with an Undesirable Discharge.  The unit commander indicated that he had considered the applicant's poor attitude towards the Army, his unwillingness to serve, and his psychiatric report in making the decision to initiate separation.

8.  The applicant waived his right to consult with legal counsel and his right to an appearance before an administrative separation board.  He did not submit a statement in his own behalf.

9.  On 1 September 1970, the separating authority waived further counseling and rehabilitation and approved the applicant's discharge.  He directed that the applicant receive an Undesirable Discharge.

10.  On 10 September 1970, the applicant was discharged after completing
8 months and 13 days of active Federal service.  His service was characterized as under other than honorable conditions on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He had 133 days of lost time due to being AWOL

11.  The applicant provided a memorial service card for his father showing that he died on 12 November 1957.

12.  The applicant provided a memorial service card for his mother showing that she died in 1984.

13.  Army Regulation 635-212, 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 members separating under these provisions. 

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.

16.  On 16 November 1972, the Army Discharge Review Board considered the applicant's request for an upgrade of his discharge and denied his application.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant may have been his mother's sole provider because his father died on 12 November 1957.  However, there is insufficient evidence to show whether the applicant had siblings who were in a position to assist him.  Although his official record shows that he requested a hardship discharge while he was a trainee, there is insufficient evidence to show the outcome of his request.  In the absence of evidence to the contrary, administrative regularity is presumed in his discharge process.  

2.  The applicant's personnel record shows he had 133 days of lost time due to 
2 periods of AWOL.  He was convicted by a special court-martial.  He had a relatively short period of service of 8 months and 13 days and did not have service of sufficient merit upon which to base a GD.  He now contends that he went AWOL due to his mother's health and because he was sexually assaulted while in military confinement.   

3.  Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge and reason for separation were appropriate considering all the facts of the case.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant indicated that he fully understood the ramifications of this type of discharge and voluntarily waived his right to counsel and an administrative separation board.

4.  The ADRB reviewed his request for an upgrade of his discharge in November 1972 and found no basis upon which to grant his request.

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 did not submit any evidence that would satisfy this requirement.

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.



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               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)                                         AR20080007562



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ABCMR Record of Proceedings (cont)                                         AR20080007562



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