IN THE CASE OF:	

		BOARD DATE:	        9 JUNE 2009

		DOCKET NUMBER:  AR20090002482 


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 his undesirable discharge be upgraded to honorable.

2.  The applicant states he should have been released from the Army to deal with personal problems.  He requests that he be considered for an upgrade under the 1977 "Carter Program."

3.  In a personal statement the applicant indicates he received draft notices on three occasions.  He was twice found not qualified for induction.  Following his second deferment, he got married.  At the time of his third induction notice his wife was pregnant and having some problems.  His wife gave birth and developed depression and she attempted suicide three times.  He applied for a hardship discharge but was denied.  He admits that he did go AWOL when he received orders to Germany.  

4.  The applicant provides a personal statement and a copy of a 1969 letter from an Army chaplain.

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.  On a 30 August 1966 DA Form 2981 (Application for Determination of Moral Eligibility for Induction), it is stated that the applicant had an eighth grade education and that his wife was in poor health.  Because of these factors the applicant did not want to enter military service.  His request, personal and work history, and police record were reviewed and it was determined that he had potential value to the service. 

3.  The applicant was inducted on 17 February 1967, completed training, and was awarded the military occupational specialty 13A (Basic Field Artilleryman).

4.  On 21 March 1968, a special court-martial found the applicant guilty of being absent without leave (AWOL) for the period from 14 November 1967 to 7 February 1968.  His sentence was confinement for 6 months and forfeiture of $35.00 pay per month for 6 months.

5.  On 29 January 1969, a special court-martial found the applicant guilty of being AWOL for the period from 8 April 1968 to 23 December 1968 and violating his parole.  His sentence was confinement for 6 months and forfeiture of $45.00 pay per month for 6 months.

6.  On 27 August 1969, a special court-martial found the applicant guilty of being AWOL for the period from 14 April 1969 to 25 July 1969.  His sentence was confinement for 6 months and forfeiture of $45.00 pay per month for 6 months.

7.  On 2 September 1969, the Fort Sill Stockade Chaplain stated the applicant's wife was experiencing emotional problems and he reported that he had been unable to obtain a hardship discharge.  The chaplain opined that the applicant was unsuitable for military life and recommended he be discharged.

8.  The record shows the applicant had never completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or completed 24 months of satisfactory military service prior to discharge.

9.  On 15 October 1969, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness.  He had 9 months and 1 day of creditable service with 693 days of lost time.

10.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

11.  DOD Discharge Review Program (Special) (SDRP), often referred to as the "Carter Program," was announced on 29 March 1977.  The program mandated upgrade of administrative discharges if the applicant met one of seven specified criteria.  On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.  

12.  Army Regulation 635-212 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he should have been released from the Army to deal with personal problems under the 1977 "Carter Program."

2.  The applicant did not meet the requirements for upgrade under the SDRP since he had not completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, received an honorable discharge from a previous period of service, or completed 24 months of satisfactory military service of prior to discharge.  


3.  The record does show that the applicant notified the Army of his wife's poor health at the time of his induction and her mental health was noted by an Army chaplain.  However, there is no verification the applicant requested and was denied a hardship discharge or that he was previously considered ineligible for induction.  

4.  The applicant was convicted on three occasions for extended periods of AWOL and his total period of lost time far exceeds his period of creditable service.  This service cannot be considered to have been honorable. 

5.  The 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.

6.  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)                                         AR20090002482





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ABCMR Record of Proceedings (cont)                                         AR20090002482



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