IN THE CASE OF:	  

		BOARD DATE:	        28 October 2008

		DOCKET NUMBER:  AR20080014497 


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 an upgrade of his discharge.

2.  The applicant states that he had a drug problem at the time and tried to get help and that he was supposed to get amnesty for coming forward about his drug problem.  He further adds that he now has cancer and would like his discharge upgraded. 

3.  The applicant did not provide any additional documentary evidence 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's records show he enlisted in the Regular Army for a period of 3 years on 23 April 1971.  He completed basic combat training at Fort Dix, New Jersey, and was subsequently transferred to another unit, also on Fort Dix, New Jersey, for completion of his advanced individual training (AIT).  The highest rank he attained during his military service was private (PV1)/E-1.

3.  On 9 August 1971, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 7 September 1971.  He remained in this status until he was apprehended by civil authorities and was returned to military control on 2 April 1972.

4.  On 20 April 1972, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-212 (Personnel Separations), by reason of unfitness. 

5.  On 24 April 1972, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under other than honorable conditions was issued to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf.

6.  On 15 May 1972, the applicant again departed his unit in an AWOL status.  However, he returned to his unit on 19 May 1972 and was subsequently placed in pretrial confinement on 20 May 1972.

7.  On 21 June 1972, the applicant’s immediate commander initiated separation action against the applicant in accordance with AR 635-212 by reason of unfitness.  The applicant's commander remarked that the applicant underwent extensive counseling and various other rehabilitative efforts; however, he was unable to adjust to the discipline required of the Armed Forces.  He departed AWOL while awaiting trial for a previous lengthy AWOL and his attitude was AWOL oriented.  If retained in the Army, he would have in all probability gone AWOL again.  His goal was to be discharged from the Army by any means. 

8.  On 23 June 1972, the applicant's intermediate commander recommended approval of the applicant's discharge and remarked that the applicant expressed only one goal with respect to his military service, to get out of the Army.  He had demonstrated that he had no intent to perform in a satisfactory manner as evidenced by his two periods of AWOL and would not adjust to the level of discipline required in the Armed Forces.

9.  On 26 June 1972, the applicant's senior commander recommended approval of the applicant's discharge with an Undesirable Discharge Certificate.

10.  On 17 July 1972, the separation authority waived any further rehabilitation efforts, approved the applicant’s discharge under the provisions of AR 635-212 by reason of unfitness, and directed the applicant be furnished an Undesirable Discharge Certificate.  He further directed the applicant be reduced to the lowest enlisted grade.  On 2 October 1972, the applicant was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 8 months and 2 days of creditable active military service and had 283 days of lost time.

11.  On 26 February 1980, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

12.  AR 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

13.  AR 635-200 (Personnel Separations) 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.


14.  AR 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 current diagnosis with cancer is unfortunate; however, it is not sufficiently mitigating to warrant an upgrade of his discharge.

2.  The evidence of record shows that the applicant had two instances of AWOL while still in AIT, including a lengthy period of 238 days.  Accordingly, his chain of command initiated elimination action against him.  His discharge was in accordance with applicable regulation and all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Based on his 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 also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general or an honorable discharge.

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.


																XXX
      _________________________
                 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)                                         AR20080014497



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ABCMR Record of Proceedings (cont)                                         AR20080014497



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