IN THE CASE OF:	 

		BOARD DATE:		 2 October 2008  

		DOCKET NUMBER:  AR20080011120 


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.  

2.  The applicant states that he was unfairly discharged.  He was drafted into the military with his wife in critical health and he presented documents from a doctor indicating her medical condition.  Afterwards, his dad had a stroke and there was no one to help with him.  He states that President Reagan offered a discharge upgrade to the country and he believes he is entitled to this upgrade.  

3.  The applicant provides no additional documents 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.  The applicant was inducted into the Army of the United States on 4 January 1967.  He was assigned to Fort Benning, Georgia for basic combat training.  

3.  The applicant’s service personnel records contain a letter, dated 18 February 1967, from a physician which indicates that his wife was unable to work to help support herself due to a rheumatic heart.

4.  On 1 March 1967, the applicant was convicted by a special court-martial of two specifications of being absent without leave (AWOL) from 14 January 1967 to 22 January 1967 and from 23 January 1967 to 27 January 1967.  He was sentenced to confinement at hard labor for 3 months (suspended for 3 months).

5.  On 12 May 1967, the applicant was convicted by a special court-martial of being AWOL from 8 March 1967 to 28 April 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $33.00 pay for 6 months.  

6.  The applicant’s service personnel records contain a letter, dated 7 August 1967, from a physician which indicates the applicant’s father was under his professional care with a diagnosis of hypertension, diverticulosis of the colon, and a duodenal ulcer.

7.  On 10 August 1967, the applicant submitted a request for separation for hardship.  On his DA Form 2476 (Application for Separation - Hardship or Dependency), he indicated that his wife had a rheumatic heart condition and a heart murmur.  He indicated his wife was unable to work and needed hospital treatment.  He also indicated that his father needed him at home to run his business because his father was unable to work at all due to a nervous condition, high blood pressure, and stomach ailments.  His father was under continuous doctor’s care. Since his wife and father were unable to work, he wanted to go home to support them.  The applicant’s request for a hardship discharge was disapproved on 7 September 1967.  It was determined that the evidence presented did not indicate a condition which warranted the applicant’s release from military service. 

8.  On 5 April 1968, the applicant was convicted by a special court-martial of being AWOL from 30 September 1967 to 4 January 1968 and from 2 February 1968 to 10 March 1968 and for escaping from lawful confinement in the Post Stockade, Fort George G. Meade, Maryland.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $41.00 pay for 6 months.  


9.  On 17 May 1968, the applicant underwent a psychiatric examination and was diagnosed as having passive-aggressive reaction.  The psychiatrist stated that the applicant’s condition was a part of a chronic character and behavior disorder due to deficiencies in emotional and personality development.  He also stated that this condition was not amendable to hospitalization, treatment, training, transfer or reclassification to another type of duty and rendered the applicant unsuitable for military duty.  The psychiatrist recommended separation under the provisions of Army Regulation 635-212.

10.  On an unknown date, the applicant was notified of pending separation action under the provisions of Army Regulation 635-212 by reason of unfitness, for an established pattern of shirking.  The applicant consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and did not submit s statement in his own behalf.

11.  On 14 June 1968, the separation authority waived rehabilitation requirements and approved the discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the issuance of an Undesirable Discharge Certificate.   

12.  Accordingly, the applicant was discharged on 14 June 1968 under the provisions of Army Regulation 635-212 by reason of unfitness, for an established pattern of shirking.  At the time of his discharge, he had completed 20 days of active military service with 506 days of lost time due to being AWOL and in confinement.  

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

14.  Army Regulation 635-212, in effect at the time, set for the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(4) of the regulation provided that members involved in an established pattern for shirking were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.  

15.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

16.  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.

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 applicant’s service record shows he received three special courts-martial actions for being AWOL and for escaping from lawful confinement, his first period of AWOL being 10 days after he was inducted.  

3.  The applicant’s misconduct cannot be condoned.  However, the evidence of record shows the applicant applied for a hardship discharge based on his wife’s and his father’s medical conditions which tend to corroborate his contention that he went AWOL to help his family.  The applicant’s service does not meet the standards of honorable as defined in Army Regulation 635-200, but as a matter of clemency only, it appears that his service would warrant a general discharge under honorable conditions based on his reason for going AWOL.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____xx____  ____xx____  ____xx____  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined during their review that the evidence presented was insufficient to warrant a recommendation for relief.  The evidence does not support changing the applicant’s undesirable discharge to a general under honorable conditions discharge.  The Soldier only served/completed 20 days of active service and had 506 days of lost time.  The Soldier’s record of service does not warrant a general discharge.

2.  As a result, the Board recommends that the applicant’s request be denied based on the fact that there is no finding of error or injustice that would warrant upgrading the characterization of the applicant’s military service.



      _________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)                                         AR20080011120



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ABCMR Record of Proceedings (cont)                                         AR20080011120



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