DOCKET NUMBER:  AR20090002144 


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 an honorable discharge.

2.  The applicant states, in effect, that he did not have infractions so serious as to warrant a court-martial.  He states he had severe personal and family issues (the death of a child and a divorce) at the time of his service which contributed to his overall mental instability.  He states that he was provided no counseling or rehabilitation by the Army.  

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 19 July 1966.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 63A (auto maintenance repairman).  His highest grade held was private, E-1.

3.  On 4 March 1967, the applicant was convicted, pursuant to his plea, by a special court-martial of being absent without leave (AWOL) on two separate occasions from 15 November 1966 to 29 November 1966 and from 1 December 1966 to 28 January 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $64.00 pay for 6 months (confinement at hard labor in excess of 3 months and a forfeiture of $64.00 pay in excess of 3 months were suspended until 3 September 1967).

4.  On 9 February 1967, the applicant underwent a psychiatric examination.  He was diagnosed as having a passive-aggressive personality.  The psychiatrist recommended that the applicant be separated from the service under the appropriate administrative regulation.  The psychiatrist stated that the applicant's retention on active duty could be expected to result in continued ineffectiveness, and disciplinary infractions.  His character and behavior disorder was of such severity that he could not be expected to respond to counseling, transfer or confinement.  

5.  On 20 February 1967, the company commander notified the applicant of the pending separation action under the provisions of Army Regulation 635-212 based on unfitness.  He was advised of his rights.  The applicant acknowledged notification of the separation action, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and he did not submit statements in his own behalf.  

6.  On 4 April 1967, the company commander recommended a waiver of further counseling and rehabilitation as prescribed in by paragraph 7, Army Regulation 635-212.  The company commander indicated the applicant was counseled on 31 January 1967 and 20 February 1967.  During these counseling sessions, the applicant indicated no desire to return to duty.  The company commander stated that further attempts at counseling and rehabilitation would be fruitless.  

7.  On 4 April 1967, the company commander recommended that the applicant be eliminated from the service due to unfitness under the provisions of Army Regulation 635-212 with the issuance of an Undesirable Discharge Certificate.  The company commander described the applicant's rehabilitation attempts and stated that the applicant's misconduct arose at a former unit of assignment and further AWOL with confinement at this organization had precluded efforts to rehabilitate him.  
8.  On 13 April 1967, the separation authority waived further counseling and rehabilitation requirements and approved the separation action with the issuance of an Undesirable Discharge Certificate.

9.  On 24 April 1967, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness - frequent incidents of a discreditable nature with civil or military authorities.  He completed 4 months of active military service and he had 157 days of lost time due to being AWOL and in confinement.  

10.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board (ADRB) within that boards 15-year statute of limitations.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 governs the separation of enlisted personnel.  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

13.  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 he did not have infractions so serious as to warrant a court-martial.  However, his record of service shows he was AWOL on two separate occasions for a total of 72 days.


2.  The applicant contends that his severe personal and family issues (the death of a child and a divorce) contributed to his overall mental stability.  However, there is no evidence of record which indicates these factors contributed to his mental instability.  

3.  The applicant also contends that there was no attempt at counseling or rehabilitation provided by the Army.  However, the evidence of record shows the applicant received counseling in January 1967 and February 1967.  His company commander appropriately recommended a waiver of further counseling and rehabilitation efforts based on the applicant's misconduct.  

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  The applicant’s record of service shows he was convicted by a special 
court-martial for being AWOL on two separate occasions.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgrade to an honorable or a general discharge.

6.  There is no evidence of record which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his 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)                                         AR20090002144



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ABCMR Record of Proceedings (cont)                                         AR20090002144



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