IN THE CASE OF:	   

		BOARD DATE:	        23 September 2008

		DOCKET NUMBER:  AR20080011047 


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, in effect, requests that his undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, that he served during the Vietnam Era and that he believed that it was an unjust war in which our country should not have been involved.

3.  The applicant provides copies of his DD Form 258A (Undesirable Discharge Certificate) and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 record shows he was inducted in the Army of the United States at the age of 19, on 26 January 1968.  He completed basic combat and advanced individual training (AIT), and was awarded military occupational specialty (MOS) 36K (Field Wireman).  The applicant completed a total of 8 months and 6 days of creditable active federal service prior to being discharged on 2 December 1968.  The rank he held at the time of his discharge from active duty was private (PVT)/pay grade E-1.

3.  DA Form 188 (Extract of Morning Report), dated 17 July 1968, shows the applicant departed AWOL on 3 June 1968 and was dropped from the rolls of the Army on 2 July 1968, after 30 days of being absent without leave (AWOL).

4.  DA Form 20 (Enlisted Qualification Record) shows the applicant was AWOL
from 3 June through 11 July 1968 for 39 days; and 26 July through 15 August 1968 for 21 days.

5.  DA Form 20B (Insert Sheet to DA Form 20) shows the applicant appeared before a Summary Court-Martial for being AWOL during the periods 3 June through 12 July 1968 and 26 July through 15 August 1968.  This form also shows the applicant was sentenced to hard labor without confinement for a period of 45 days and a forfeiture of $50.00 per month for one month (the forfeiture was suspended).  This sentence was adjudicated and approved on 29 August 1968.

6.  DA Form 20 shows the applicant was AWOL from 9 September through 16 September 1968 for 8 days prior to surrendering to military authorities.  This form further shows the applicant was in military confinement from 17 September through 1 October 1968 for 15 days.

7.  KAH Form 35 (Report of Psychiatric Evaluation), dated 10 October 1968, shows the applicant was given a psychiatric evaluation and diagnosed with an emotional instability reaction which was determined to have existed prior to his entry into the Army.  The examining psychiatrist opined that the applicant was oriented, rational, coherent, and gave no evidence of abnormal thinking or behavior suggesting a serious mental illness.  The psychiatrist further opined that the applicant's condition was not amenable to hospitalization, treatment, training, transfer, or reclassification to another type of duty and rendered him unsuitable for military duty.

8.  1AA Form 653-1 (Individual's Statement - Separation Under Army Regulation 635-212), dated 8 November 1968, shows the applicant consulted with legal counsel regarding the basis for the contemplated action to accomplish his separation for unfitness.  The form further shows that after consulting with 
counsel, the applicant waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by appointed military or hired civilian counsel, and elected not to submit statements in his own behalf.  The applicant also stated he understood that he may expect to encounter substantial prejudice in civilian life in the event he was issued a general discharge under honorable conditions.  He indicated also understood that, as a result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and may expect to encounter substantial prejudice in civilian life.

9.  United States Army Special Processing Battalion, Fort George G. Meade, Maryland, Memorandum, dated 19 November 1968, shows the applicant's commander recommended that he be discharged under the provisions of Army Regulation 635-212 (Personnel Separations) for unfitness and that he be issued an Undesirable Discharge Certificate.  The 2nd endorsement to this memorandum shows the separation approval authority approved the applicant's discharge and directed that he be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.

10.  Headquarters Fort George G. Meade, Fort George G. Meade, Maryland, Special Orders 247, dated 27 November 1968, discharged the applicant under the provisions of Army Regulation 635-212, assigned him an under conditions other than honorable characterization of service, and directed the issuance of an Undesirable Discharge Certificate, effective 2 December 1968.

11.  The applicant's DD Form 214 confirms that he was discharged accordingly.  This DD Form 214 shows the applicant was discharged under the provisions of Army Regulation 635-212, his service was characterized as under other than honorable conditions, and that he was issued an Undesirable Discharge Certificate.  The applicant authenticated this document with his signature on the date of his separation.  In effect, his signature is his verification that the information contained on the separation document, to include the authority and reason for his discharge, was correct at the time the DD Form 214 was prepared and issued.  Absent evidence to the contrary, this document establishes a presumption of Government regularity in the applicant’s separation processing.

12.  On 20 September 1974, the applicant submitted a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States).  The applicant requested to have his discharge upgraded to a general discharge based upon "nervous physical reasons."

13.  United States Army Office of the Adjutant General, letter dated, 6 January 1975, informed the applicant that the Army Discharge Review Board, after careful consideration of his records and all other available evidence had determined that he was properly discharged.  Accordingly, the Secretary of the Army directed that he be advised that his request for change in the type and nature of his discharge had been denied.  This letter also advised the applicant that he could appeal the board's decision to the Army Board for Correction of Military Records (ABCMR).  A DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, United States Code, Section 1552) was provided as an enclosure with the letter.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge and characterization of service should be upgraded were carefully considered and determined to be without merit.
2.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

3.  In the absence of information to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to being discharged.

4.  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

____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)                                         AR20080011047



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ABCMR Record of Proceedings (cont)                                         AR20080011047



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