IN THE CASE OF:	  

		BOARD DATE:	        09 APRIL 2009

		DOCKET NUMBER:  AR20080019280 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that when he entered the service he was young, immature and unable to cope with military life.  He had just been released from prison and was drafted into the military.  He goes on to state that he felt like he was in prison and he rebelled.  He continues by stating that he totally regrets his youthful actions and wishes he could go back and do things differently, but he cannot.  He further apologizes for his actions while in the military and requests that his discharge be upgraded so that he can qualify for veteran’s benefits that he sorely needs.

3.  The applicant provides a third party letter of support.

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 born on 15 March 1947 and was inducted at Coral Gables, Florida on 14 February 1967.  He was transferred to Fort Benning, Georgia to undergo his basic combat training.

3.  On 21 March 1967, he went absent without leave (AWOL) and remained absent until he was returned to military control at Fort Gordon, Georgia on 12 April 1967.  He again went AWOL on 20 April 1967 and remained absent in a desertion status until he was again returned to military control at Fort Gordon on 21 June 1967.

4.  On 27 July 1967, he was convicted by a special court-martial of being AWOL from 21 March to 11 April 1967 and from 20 April to 20 June 1967.  He was sentenced to confinement at hard labor for 6 months (suspended for 6 months), a forfeiture of pay and reduction to the pay grade of E-1.

5.  He again went AWOL on 1 August 1967 and remained absent until he was returned to military control at Fort Gordon on 26 August 1967, where charges were preferred against him.

6.  On 12 September 1967, he was convicted by a special court-martial of being AWOL from 1 August to 25 August 1967.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay and reduction to the pay grade of E-1.

7.  On 15 September 1967, the applicant underwent a mental status evaluation and was deemed to be capable of distinguishing right from wrong and of adhering to the right.  The examining psychiatrist opined that the applicant had a personality disorder, anti-social, chronic, severe, manifested by inability to adjust to military environment, immaturity and emotional instability; use of unauthorized drugs, including narcotics, amphetamines, barbiturates and LSD; labile control of military rules and regulations; defiance of the military; poor impulse control with escape-type behavior; and impaired insight and judgment.  He strongly recommended an administrative separation.

8.  On 29 September 1967, the applicant's commander initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-212 for unfitness due to frequent involvement in incidents of a discreditable nature with military authorities.  The applicant was still in a trainee status and had not been awarded a military occupational specialty.

9.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

10.  The appropriate authority (a major general) approved the recommendation for discharge on 9 October 1967 and directed that the applicant be furnished an Undesirable Discharge Certificate.

11.  Accordingly, he was discharged under other than honorable conditions on 17 October 1967, under the provisions of Army Regulation 635-212, for unfitness, due to frequent involvement in incidents of a discreditable nature with military authorities.  He had served 1 month and 21 days of total active service and had 196 days of lost time due to being AWOL and in confinement.

12.  There is no evidence in the available records to show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the authority for the separation of enlisted personnel for unsuitability and unfitness.  It provided, in pertinent part, that members who established a pattern of shirking or who were involved in frequent incidents of a discreditable nature with civil and/or military authorities, were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

2.  Accordingly, the type of discharge and the reason therefore were appropriate considering the facts of the case and his otherwise undistinguished record of service during such a short period of time.

3.  The applicant's contentions were considered; however, his desire to obtain veteran's benefits is not a sufficient basis to upgrade his discharge when considering his undistinguished record of service during such a short period of time.  Accordingly, there appears no basis to warrant an upgrade of his discharge.

4.  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 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.




      _______ _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)                                         AR20080019280



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ABCMR Record of Proceedings (cont)                                         AR20080019280



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