IN THE CASE OF:	

		BOARD DATE:	25 June 2009  

		DOCKET NUMBER:  AR20090003500 


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, that he believes the government owes him something for the injustice he suffered from years ago.  He claims he was 4-F when he was drafted and that he was mistreated and discriminated against.  

3.  The applicant provides no additional documentary evidence 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's record shows that he was inducted into the Army of the United States and entered active duty on 23 April 1969.  The DD Form 47 (Induction Record) on file notes that the applicant suffered from convulsive disorders in 1962, dizzy spells in 1963, and that he was convicted or adjudicated for burglary on 23 December 1964.  It further shows that hospital reports for his medical conditions were considered at the time and that after undergoing a thorough induction physical examination, he was determined to be acceptable for induction by competent medical authority.  It also shows he was granted a moral waiver for his burglary offense and that his mental testing placed him in mental category II.  

3.  The record shows the applicant was assigned to Fort Knox, Kentucky to attend basic combat training.  The applicant's records document no acts of valor or significant achievement.

4.  The applicant's record confirms he accrued a total of 294 days of time lost during two separate periods of being absent without leave (AWOL) and a period of military confinement.  

5.  On 1 June 1969, while still in training, the applicant departed AWOL from his training unit at Fort Knox.  He remained away for 48 days until returning to military control at Fort Carson, Colorado on 19 July 1969.

6.  On 29 August 1969, a Special Court-Martial (SPCM) found the applicant guilty of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 1 June through on or about 18 July 1969.  The resultant sentence was confinement at hard labor for 3 months (suspended) and a forfeiture of $76.00 per month for 3 months.

7.  On 28 September 1969, the applicant departed AWOL from his organization at Fort Carson and remained away for 161 days until returning to military control at Fort Riley, Kansas on 8 March 1970.  

8.  On 1 April 1970, an SPCM found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from on or about 28 September 1969 through on or about 8 March 1970.  The resulting sentence was confinement at hard labor for 
6 months.

9.  On 22 May 1970, the applicant's commander at the United States Army Correction Facility, Fort Riley, notified him of the intention to process him for separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness.  

10.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effect, and of the rights available to him.  Subsequent to receiving this counsel, the applicant elected to waive his right to have his case considered and to personally appear before a board of officers.  He also elected not to submit statements in his own behalf and he waived representation by counsel.  The applicant also acknowledged that he understood he could encounter substantial prejudice in civilian life if he received an UD.

11.  On 28 May 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 receive an UD.  On 5 June 1970, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to him at the time shows he completed a total of 3 months and 23 days of creditable active military service, and that he accrued 290 days of time lost due to AWOL and confinement.  

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures, in pertinent part, for separating members for unfitness.  The separation authority could authorize a general, under honorable conditions discharge (GD) or honorable discharge (HD) if warranted by the member's record of service; however, an UD was normally considered appropriate for members separating for unfitness.  

13.  Army Regulation 635-200 governs the current policies and procedures for the separation of enlisted personnel.  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.  

14.  Paragraph 3-7b of the same regulation 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.

15.  Title 32, U.S. Code, Chapter XVI, section 1630.2 sets forth the classification of registrants under the Selective Service System.  The statute states, in pertinent part, that Class 4-F shall be placed on any registrant who is found by the Secretary of Defense, under applicable physical, mental or administrative standards, to be not acceptable for service in the Armed Forces; except that no such registrant whose further examination or re-examination is determined by the Secretary of Defense to be justified shall be placed in Class 4-F until such further examination has been accomplished and such registrant continues to be found not acceptable for military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was unjust because he was not qualified for induction and because he was discriminated against was carefully considered.  However, there is no evidence of record or independent evidence provided by the applicant that supports these claims.

2.  There is no evidence of record and the applicant did not provide any evidence to show that he was classified as 4-F and, therefore, not acceptable for military service.  On the contrary, based on the applicant's medical and mental determination at the time of his induction, he was found acceptable for induction into the armed forces by competent authority and, therefore, duly inducted into the Army of the United States.

3.  The evidence of record documents no acts of valor or significant achievement on the part of the applicant.  However, it does confirm an extensive disciplinary history that includes two separate SPCM convictions and his accrual of 290 days of time lost due to AWOL and confinement.  His short and undistinguished record of service clearly did not support the issue of a GD or HD by the separation authority at the time of his discharge and does not support an upgrade now.  

4.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, the applicant's UD accurately reflects his overall record of 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 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.



      ___________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)                                         AR20090003500



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ABCMR Record of Proceedings (cont)                                         AR20090003500



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