IN THE CASE OF:	  

		BOARD DATE:	        22 July 2008

		DOCKET NUMBER:  AR20080007708 


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 general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states that after so long he just thought he would request a review “due to the time frame and events that lead (sic) to his discharge, were questionable.”

3.  The applicant provides no additional evidence.

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 was born on 17 January 1954.  He enlisted in the Regular Army on 7 June 1971.  He completed basic combat training.
3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 9 August through 13 August 1971.  There is no record to show he received punishment for this period of AWOL.

4.  On 18 January 1972, the applicant was convicted, pursuant to his pleas, of four specifications of being AWOL – from on or about 16 August until on or about 29 August 1971; from on or about 3 September until on or about 13 September 1971; from on or about 15 September until on or about 20 September 1971; and from on or about 2 November to on or about 11 November 1971.  He was sentenced to confinement at hard labor for four months and to forfeit $180.00 pay per month for four months.  

5.  While at the U. S. Army Correctional Training Facility, Fort Riley, KS, action was initiated to separate the applicant under the provisions of Army Regulation 635-212 for unsuitability.

6.  On 26 February 1982, the applicant was advised by counsel of the basis for the contemplated separation action.  He waived his right to consideration of his case by a board of officers, waived personal appearance before a board, waived representation by counsel, and elected not to submit a statement on his behalf. 

7.  The applicant was formally recommended for separation.  It was noted that during his correctional custody the applicant had received 16 unfavorable spot reports for sleeping, refusing to follow instructions, disobedience, and for making two suicide gestures.  At that time, the applicant indicated that he had no intention of committing suicide but that he preferred the hospital to maximum security.  He had received five unfavorable observation reports and had received extensive counseling in that regard without altering his behavior patterns.  

8.  On 29 February 1972, the applicant completed a separation physical examination and was found qualified for separation.

9.  The applicant completed a mental status evaluation and was found to have no significant mental illness, to be mentally responsible, to be able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

10.  The appropriate authority approved the recommendation and directed issuance of a General Discharge Certificate.



11.  On 14 March 1972, the applicant was discharged with a general discharge under honorable conditions under the provisions of Army Regulation 635-212, for unsuitability.  He had completed 3 months and 23 days of creditable active service and had 146 days of lost time (AWOL and confinement).

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided, in pertinent part, that members were subject to separation for unsuitability for inaptitude, character and behavior disorders, apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively, alcoholism, and enuresis.  A general under honorable conditions characterization of service was normally appropriate.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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.  Considering his five instances of AWOL, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel, standards he should have learned while in basic combat training.  The overall quality of his service does not merit an upgrade of his discharge to fully honorable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ___xx___  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.



												________xxxx___________
               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)                                         AR20080007708



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ABCMR Record of Proceedings (cont)                                         AR20080007708



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