IN THE CASE OF:	

		BOARD DATE:	  14 April 2009

		DOCKET NUMBER:  AR20090001044 


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, an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states that he was injured during basic combat training after a blow to his head caused problems to his back and that he was in and out of the hospital, but was always sent back to duty. 

3.  The applicant provides copies of his neurological treatment plans, dated 26 March 2002 and 20 December 2004, in support of his request. 

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 was inducted into the Army of the United States on 10 March 1969 and proceeded to Fort Gordon, GA, for completion of basic combat training.  However, shortly after arrival at Fort Gordon, he departed his basic training unit in an absent without leave (AWOL) status on 22 March 1969 and again on 3 April 1969.  Upon return from his second AWOL, he was reassigned to the Special Processing Detachment, Fort Devens, MA; however, he again departed that unit in an AWOL status on 3 June 1969.

3.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 1 April 1969, for being AWOL during the period from on or about
22 March 1969 through on or about 29 March 1969.  His punishment consisted of a forfeiture of $20.00 pay, 14 days of restriction, and 14 days of extra duty;

	b.  on 28 April 1969, for being AWOL during the period from on or about
3 April 1969 through on or about 9 April 1969.  His punishment consisted of a forfeiture of $30.00 pay and 7 days of restriction; and

	c.  on 18 September 1969, for being AWOL during the period from on or about 3 June 1969 through on or about 11 July 1969.  His punishment consisted of a forfeiture of $50.00 pay and 21 days of restriction.

4.  On 16 April 1970, the applicant pled guilty at a Special Court-Martial to two specifications of being AWOL during the periods from on or about 4 October 1969 through on or about 18 November 1969 and from on or about 18 November 1969 through on or about 2 February 1970.  The Court sentenced him to confinement at hard labor for five months and a forfeiture of $82.00 pay per month for five months.  The sentence was adjudged on 16 April 1970 and was approved on 6 May 1970.

5.  On 8 June 1970, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.

6.  On 8 June 1970, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unsuitability, 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 waived consideration of his case by a board of officers and/or personal appearance before a board of officers, and elected not to submit any statements in his own behalf. 

7.  The applicant also acknowledged that he understood that he could encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as a result of the issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could also encounter substantial prejudice in civilian life.

8.  On 8 June 1970, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation 635-212, by reason of unfitness.  The immediate commander recommended an Undesirable Discharge Certificate and further remarked that the applicant was involved in frequent incidents of discreditable nature with military authorities.  He added that the applicant failed to complete basic combat training and had been AWOL on multiple occasions.  Since his arrival to the unit, he stated that he could not make it in the Army and that he wanted a discharge and did not care what kind of discharge it was.  He was counseled several times by the unit social worker, commander, team leader, and team noncommissioned officer. 

9.  On 8 June 1970, the applicant's intermediate commander concurred with the recommendation of the applicant’s immediate commander and recommended an Undesirable Discharge Certificate.

10.  On 12 June 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 19 June 1970.  The DD Form 214 he was issued confirms he was discharged with an undesirable discharge, characterized as under other than honorable conditions.  This form further also confirms that he completed a total of 5 months and 12 days of creditable active military service and had 298 days of lost time.

11.  The applicant’s medical records are not available for review with this case.

12.  There is no indication that the applicant 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, 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.

14.  Army Regulation 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.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge.

2.  There is no evidence in the applicant’s records and the applicant did not provide any substantiating evidence that shows he suffered from any medical conditions during his military service or that his multiple instances of AWOL were caused by a medical condition.  

3.  The evidence of record shows that the applicant had three instances of nonjudicial punishment, one instance of a Special Court-Martial, and multiple instances of AWOL.  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.

4.  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.



      __________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)                                         AR20090001044



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ABCMR Record of Proceedings (cont)                                         AR20090001044



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