IN THE CASE OF:
BOARD DATE: 25 March 2010
DOCKET NUMBER: AR20090015168
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 correction of his undesirable discharge to unsuitability under Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability) or upgrade to general under honorable conditions.
2. The applicant states his discharge should be upgraded because he served 2 years and 4 months of honorable service [before he reenlisted] and a total of 5 years, 4 months, and 24 days. He thinks absence without leave (AWOL) was justified because he might have gotten killed in Vietnam and because the President pardoned Vietnam Era draft dodgers and activists. He is totally disabled and dependent upon social security disability compensation.
3. In support of his request, the applicant provides copies of both of his DD Forms 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 applicant enlisted in the Regular Army on 21 October 1959. He completed training, was awarded military specialty 632.10 as a tracked vehicle mechanic, served without a discreditable incident, and progressed normally. On 21 February 1962 he reenlisted for a bonus. He had completed 2 years and 4 months of creditable service.
3. He was stationed in Alaska in October 1962 where he was advanced to pay grade E-4 in January 1963 and was AWOL on 7 April 1963. An 8 July 1963, a summary court-martial at Fort Hood, Texas convicted him of 78 days of AWOL.
4. Special courts-martial on 25 March 1965 and 4 October 1965 convicted him of two more AWOL offenses. A stockade evaluation report noted that he stated he went AWOL because he wanted to get out of the service and had no desire to return to duty.
5. A 28 September 1965 psychiatric examination found no mental disease and, although the doctor considered the applicant immature, he did not diagnose a personality disorder. The applicant was found to be mentally responsible, able to tell right from wrong, and to adhere to the right. He had the mental capacity to participate in board proceeding.
6. When the applicant was notified of recommended separation for unfitness by frequent discreditable incidents, he consulted with counsel and was advised of his rights. He elected to be represented by counsel but waived his right to have a board of officers consider his case. He also indicated his understanding that the discharge would be other than honorable, that he might be deprived of his State and Federal rights as a veteran, and that he could expect to encounter prejudice in civilian life because of the discharge.
7. The intermediate commander supported the recommended action and the separation authority directed an undesirable discharge.
8. On 18 November 1965, the applicant was issued an Undesirable Discharge Certificate under the provisions of Army Regulation Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness). He had 3 years and 7 days of creditable service and 263 days of lost time during the period under review.
9. Army Regulation 635-208, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness. A Soldier would be separated for unfitness when it had been determined that his or her record was characterized by frequent incidents of a discreditable nature with civil or military authorities and/or several other factors. An undesirable discharge was issued unless the particular circumstances warranted a general or honorable discharge.
10. Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability. Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that: the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality. Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available. A general or honorable discharge was considered appropriate. Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.
11. Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973. Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights. The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration. Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.
DISCUSSION AND CONCLUSIONS:
1. The applicant states his discharge should be upgraded because he served 2 years and 4 months of honorable service and a total of 5 years, 4 months, and 24 days. He thinks his AWOL was justified because he might have gotten killed in Vietnam and because the President pardoned Vietnam Era draft dodgers and activists. He is totally disabled and dependent upon Social Security disability compensation.
2. There is no available evidence the applicant qualified for separation for unsuitability. Even if he had, he could have been discharged because of his misconduct and his offenses warranted that disposition.
3. The applicant does not claim he completed an alternate restitution program that earned him a clemency discharge. Furthermore, that would not have affected the underlying discharge or provided the attendant benefits.
4. Entitlement to veterans' benefits is not within the purview of this Board nor is it normally considered a basis for granting relief.
5. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
6. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.
7. 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.
8. In view of the foregoing there is no basis for granting the applicant's requested relief.
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) AR20090015168
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20090015168
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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