IN THE CASE OF:	  

	BOARD DATE:	  12 August 2008

	DOCKET NUMBER:  AR20080008603 


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, in effect, that his undesirable discharge be upgraded to general under honorable conditions.

2.  The applicant states that he asked for a general discharge and signed out.  He did not know at the time that his discharge was under other than honorable conditions.  He was young and confused.  His wife at the time had left him and his baby was with his mother who was unable to support or care for a child.  Therefore, he went absent without leave (AWOL).  He further states that he received an honorable discharge for his first period of active duty service and had been a valuable Soldier until his wife left him.  He will do anything to straighten out his discharge.

3.  The applicant provides copies of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214), effective 22 October 1964 and 20 October 1965.

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 12 October 1962, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 133.10 (Armor Intelligence Specialist).  He was subsequently assigned for duty in the Federal Republic of Germany.

3.  On 6 January 1964, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL for less than 1 day.  The punishment included a forfeiture of $13.00 pay per month for 1 month and 10 days of extra duty and restriction.  He did not appeal the punishment. 

4.  On 8 May 1964, the applicant accepted NJP for being AWOL for less than 
1 day.  The punishment included a forfeiture of $13.00 pay per month for 1 month and 14 days of extra duty and restriction.  He did not appeal the punishment. 

5.  The applicant was subsequently returned to the United States for duty with the 11th Armored Cavalry Regiment at Fort Meade, Maryland.

6.  On 22 October 1964, the applicant was discharged from the Regular Army for the purpose of immediate reenlistment.  He had attained the rank of specialist four, pay grade E-4, and had completed 2 years and 10 days of creditable active service.  His characterization of service was honorable.

7.  On 23 October 1964, the applicant reenlisted in the Regular Army for 3 years. 

8.  The applicant was subsequently assigned for duty with the 4th Battalion, 30th Infantry Regiment, at Fort Sill, Oklahoma.

9.  On 16 June 1965, the applicant was assigned to Headquarters, United States Army Garrison, Fort Hood, Texas.

10.  On 17 June 1965, the applicant underwent a psychiatric evaluation by a Medical Corps officer.   The Report of Psychiatric Examination indicates that the applicant was completely unmotivated for continued service and that he stated he would go AWOL again if reassigned.  The applicant's mental status was found to be within normal limits and it was determined that he knew the nature and quality of his acts and was mentally responsible.    
11.  On 12 July 1965, the applicant was convicted by special court-martial, of being AWOL during the period from on or about 12 January to on or about 
10 June 1965.  His sentence consisted of confinement at hard labor for 5 months and a forfeiture of $48.00 pay per month for 6 months.  

12.  On 11 September 1965, the applicant’s unit commander initiated separation under the provisions of Army Regulation 635-208 for unfitness.  The commander summarized the applicant's misconduct and stated that any further rehabilitative measures were deemed unnecessary.

13.  On 11 September 1965, the applicant received legal counseling.  He acknowledged that he may receive an undesirable discharge and that such a discharge was considered under conditions other than honorable.  He waived consideration of his case by a board of officers, waived a personal appearance, waived representation by counsel, and declined to submit a statement in his own behalf.

14.  On 21 September 1965, the applicant was convicted by special court-martial of being AWOL during the period from on or about 19 August to on or about 
9 September 1965.  His sentence consisted of confinement at hard labor for 
6 months and a forfeiture of $75.00 pay per month for 6 months.  

15.  The appropriate authority approved the separation action and directed issuance of an Undesirable Discharge Certificate.  On 20 October 1965, the applicant was discharged accordingly.  He had completed 2 months and 22 days of creditable active service during this period of active duty and had accrued 
279 days of lost time due to being AWOL and in confinement.

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

19.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  The regulation further provides that: "the setting of arbitrary standards, such a certain number of trials by courts-martial, as a prerequisite to administrative elimination as a test of 'effective rehabilitation' violates the concept of individual evaluation."  A board of medical officers would be convened when a mental or physical disability appeared to exist after examination by a medical officer or psychiatrist.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.  There is no evidence of record, nor has the applicant provided sufficient evidence to support upgrade of his discharge. 

2.  Notwithstanding the applicant's assertions, there is no available evidence showing that he had any mitigating circumstances or that his AWOL was a reasonable solution to them.  

3.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory. Therefore, his undesirable discharge should not be upgraded.

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
      
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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080008603



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