IN THE CASE OF:	  

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090014648 


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 her brother's undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that her brother, a former service member (FSM), is a full-blooded Native American who was inducted into the Army and served for 3 years.  She states that he served in Korea during the Vietnam War era and as his legal guardian she desires that his discharge be upgraded to fully honorable so that he can have a military funeral and a flag when he passes away.  She goes on to state that their mother was misdiagnosed with cancer in 1970 and the FSM wanted to be home with their mother so he requested an "early-out" discharge; however, he was given an undesirable discharge instead and regrets signing such a discharge.  She continues by stating the FSM was a good Soldier while in the service and did the job he was sent to do.  He was honored to serve his country and he deserves an honorable discharge.

3.  The applicant provides a copy of an order of guardianship and a copy of the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 FSM was inducted into the Army of the United States in Omaha, Nebraska, on 18 May 1967.  He completed his basic training at Fort Bliss, Texas, and his advanced individual training as an armor intelligence specialist at Fort Knox, Kentucky, before being transferred to Korea on 15 October 1967.

3.  On 12 December 1967, he was convicted by a special court-martial of two specifications of breaking restriction and one specification of assaulting a civilian guard and commander of the guard with a hand grenade by threatening its use.  He was sentenced to a forfeiture of pay for 6 months and confinement for 6 months (3 months suspended unless vacated).

4.  He departed Korea on 23 April 1969 and was transferred to Fort Knox.  On 31 May 1969, he was absent without leave (AWOL) and remained absent in desertion until 16 October 1969 when he was returned to military control and charges were preferred against him for the AWOL offense.

5.  On 18 December 1969, after consulting with counsel, the FSM submitted a voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

6.  On 16 January 1970, he escaped from the post stockade and again was AWOL.  Meanwhile, the appropriate authority approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.  However, for reasons not explained in the available records, that discharge was not effected.  He remained absent in desertion until he was returned to military control at Fort Riley, Kansas, on 16 July 1970 and charges were preferred against him.

7.  On 11 August 1970, the FSM underwent a neuropsychiatric evaluation and was found mentally responsible, able to distinguish right from wrong and to adhere to the right and that he had the mental capacity to understand and participate in board proceedings.  The evaluation also indicated that the applicant displayed noncommitment to productive goals, an incapacity to respond to rehabilitative efforts, resentment towards authority, and a tendency for AWOL when stress arises.

8.  On 4 September 1970, the FSM was notified by his commander that action was being initiated to separate him from the service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness due to his frequent involvement in incidents of a discreditable nature with military authorities.  He was also advised that he was pending trial by court-martial and that if the discharge was approved, the charges would be dismissed.

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

10.  The appropriate authority approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

11.  Accordingly, he was discharged under other than honorable conditions on 1 October 1970 under the provisions of Army Regulation 635-212 for unfitness due to his frequent involvement in incidents of a discreditable nature with military authorities.  He had served 2 years and 13 days of total active service and had 481 days of lost time due to AWOL and confinement.

12.  There is no evidence in his official records to show that he 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 basic authority for the separation of enlisted personnel for unfitness.  It provided, in pertinent part, that members 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 3-7a 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 FSM's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons were therefore appropriate under the circumstances.

3.  The applicant's contentions have been noted by the Board and while they are not supported by either evidence submitted with her application or the evidence of record, they are also not sufficiently mitigating to warrant relief when compared to the FSM's misconduct, which included assault,  and his otherwise undistinguished record of service.

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.



      _______ _   _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)                                         AR20090014648



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ABCMR Record of Proceedings (cont)                                         AR20090014648



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