IN THE CASE OF:	  

		BOARD DATE:	        26 March 2009

		DOCKET NUMBER:  AR20080018344 


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 (UD) be upgraded.

2.  The applicant states, in effect, he was incompetent and under psychiatric care when he was asked to sign the paperwork for his administrative discharge.  He states his doctor was upset with him for signing the discharge paperwork because he [doctor] was working to obtain a medical discharge.  For years
thereafter, he tried to right this unjust act, but was told his records were destroyed or lost.

3.  The applicant provides a self-authored note written on “Arkansas Bolt Co.” stationary.  He also refers the Board to his service personnel, finance, and medical records.

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 service personnel records are available to the Board.  His service medical records have apparently been forwarded to the Department of Veterans Affairs.

3.  The applicant enlisted in the Regular Army for 3 years on 25 May 1971.  Following Basic Combat Training (BCT) at Fort Campbell, KY, he was sent to Fort Sill, OK for Advanced Individual Training (AIT) in military occupational specialty (MOS) 13A (Cannoneer).  He successfully completed all initial entry training and was awarded MOS 13A.  His first permanent duty assignment was with Battery C, 6th Battalion, 44th Artillery in Korea.  Although he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, (UCMJ) for two specifications of failing to go to at the time prescribed to his appointed place of duty, he received excellent conduct and efficiency ratings during this assignment.

4.  In January 1973, the applicant returned to the United States for assignment to Battery C, 4th Battalion, 4th Artillery at Fort Sill.  There, his attitude, conduct and duty performance rapidly deteriorated.  His records contain three additional records of NJP under Article 15, for:

	a.  being absent without leave (AWOL) from 21 February 1973 to 28 February 1973, for which he received a forfeiture of $40 pay per month for 1 month and 10 days of restriction;

	b.  being AWOL from 2 April 1973 to 9 April 1973, for which he received a reduction from the rank of Private First Class (E-3) to Private (E-2) and 5 days of restriction; and

	c.  failing to go to his appointed place of duty at the time prescribed on 30 April 1973, for which he received 14 days of restriction and extra duty.

5.  On 15 May 1973, the applicant’s battery commander initiated action to discharge the applicant for unfitness under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  On 18 May 1973, the applicant met with a military attorney who explained the basis for the contemplated discharge action against him.  He acknowledged this counseling and elected to waive his rights and to not submit a statement in his own behalf.

6.  There are no records in the applicant’s file pertaining to any medical or psychiatric issues.  There is one statement written by his battery commander on 30 May 1973 which indicates, in part, “In accordance with telephonic arrangements between this command and Major M**k, United States Army Reynolds Army Hospital, [applicant] will be admitted to a Veterans Administration (VA) [now known as the Department of Veterans Affairs] Hospital for drug abuse as soon as approval for discharge has been made.”

7.  On 19 June 1973, the approving authority approved the applicant’s discharge for unfitness and directed a UD.  The applicant was discharged on 22 June 1973. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he served 2 years and 15 days of creditable active service and he had 14 days of time lost due to AWOL.  His discharge was characterized as under other than honorable conditions.  He received an Undesirable Discharge Certificate by reason of unfitness under the provisions of chapter 13, Army Regulation 635-200.

8.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 19 December 1988, denied his request.

9.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at the time, applied to separation for unfitness and unsuitability.  Paragraph 13-5 provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted, a UD was normally considered appropriate.

10.  Army Regulation 635-200 states the following reference discharges under honorable conditions:

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) 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.

	


   b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.  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 requests a discharge upgrade.

2.  There is no evidence the applicant was being treated for a psychiatric condition or that he was being processed for a medical discharge.  The only reference to his medical condition referred to an arrangement between his commander and the Army hospital to ensure that he received treatment at a VA hospital for drug abuse immediately upon his discharge.  This suggests that his medical condition was one of dependence on illegal drugs rather than psychiatric issues.

3.  There is no evidence the applicant was incompetent when he acknowledged the proposed discharge action.  He was properly advised by an Army lawyer and he acknowledged that advisement.

4.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080018344



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ABCMR Record of Proceedings (cont)                                         AR20080018344



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