BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100011374 


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 (UD) be upgraded to a fully honorable discharge (HD).

2.  The applicant states he had preservice extenuating circumstances that led to his misconduct.  Prior to entering active duty he had an altercation with the police and was charged with assault on a police officer.  This information was provided to members of his chain of command which resulted in him being harassed.  He feared that it was only a matter of time before a sergeant or higher goaded him into a fight and he would be thrown in prison.  Therefore, he started going absent without leave (AWOL).  He had psychological problems that were not addressed at his court-martial.

3.  The applicant provides copies of a letter from his brother, a Department of Veterans Affairs (VA) denial letter, his DD Form 214 (Report of Transfer or Discharge), and a Social Security Administration earnings statement. 

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 29 June 1967.  He completed basic training but never completed advanced individual training.

3.  On 26 September 1967, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being AWOL from 20 to 23 September 1967.

4.  On 3 October 1967, the applicant was afforded a mental hygiene evaluation.  He was found to have an immature personality manifested by loss of motivation, escape-type behavior, and lack of purpose.  The psychiatrist determined the condition was a character and behavioral problem that had existed prior to service, but it was not so severe as to prevent him from serving.

5.  On 14 November 1967, a special court-martial found the applicant guilty of being AWOL from 5 October to 30 October 1967.  He was sentenced to a forfeiture of $60.00 pay for 6 months, and confinement for 6 months.  The court-martial convening authority suspended the confinement portion of his sentence for 6 months.  

6.  The applicant went AWOL again from 6 January to 21 February 1968 and he was placed in pretrial confinement pending further disciplinary action.

7.  On 29 February 1968, the suspended portion of the 14 November 1967 court-martial sentence was vacated.

8.  On 4 April 1968, a special court-martial found the applicant guilty of being AWOL from 6 January to 20 February 1968.  His sentence included confinement for 6 months and forfeiture of $63.00 pay for 6 months. 

9.  On 30 April 1968, the applicant was afforded a mental and physical evaluation.  At the time of the neuropsychiatric examination the applicant was described as cooperative with complaints of nervousness and anxiety.  The applicant told the attending psychiatrist that he could not adjust to the regimentation and harassment of the Army.  He had a quick temper and a history of aggressive and defiant behavior.  The psychiatrist diagnosed him with a passive aggressive personality and recommended that he be administratively separated from the service.
10.  On 13 May 1968, his chain of command initiated separation action to separate him under the provisions of Army Regulation 635-212 for unfitness with a UD.  

11.  On 22 May 1968, the applicant acknowledged the separation notification and after consulting with counsel, he waived all of his rights.

12.  On 27 May 1968, the discharge authority waived further counseling and rehabilitation efforts, approved the discharge action, and directed that the applicant be issued a UD.

13.  The applicant was discharged with a UD on 13 June 1968.  He had 6 months and 9 days of creditable service with 153 days of lost time due to being AWOL and in military confinement. 

14.  The applicant's brother's statement is virtually identical to the applicant's.  They both relate an incident that occurred prior to the applicant's entry on active duty and he states the applicant was harassed during training as a result of the incident.  The applicant and the other male members of the family all had military service and have supported his brother subsequent to his discharge.  He states the applicant's paranoid ideations prevented him from properly handling his situation while on active duty and has resulted in him being unable to hold a job.

15.  On 30 December 2009, the VA denied the applicant's request for pension benefits due to the nature of his discharge.

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

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, a UD was normally considered appropriate.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the policies and procedures for enlisted personnel separations.  Chapter 3, in effect at that time, outlines the criteria for characterization of service:


   a.  Paragraph 3-7a states that an HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. 
   
   b.  Paragraph 3-7b states that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD.  
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that he had extenuating circumstances that led to his misconduct.  Prior to entering active duty he was charged with assault on a police officer.  This information was provided to his chain of command and it resulted in him being harassed.  He feared that he would be goaded into a fight and thrown in prison.  Therefore, he went AWOL.  The applicant's contentions are not sufficiently mitigating to warrant relief.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant also contends that his psychological problems were not addressed at his court-martial.  Though the applicant was diagnosed with a character and personality problem that existed prior to entry onto active duty it was his misconduct that led to his discharge.  He received one NJP and two court-martial actions for going AWOL.  He had almost as much lost time as creditable service.  His record is devoid of any evidence of significant redeeming service. 

4.  If the applicant believed that he had psychological problems that mitigated his misconduct he had the responsibility and the opportunity to raise the issues as part of the appeals process on more than one occasion.  

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)                                         AR20100011374



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ABCMR Record of Proceedings (cont)                                         AR20100011374



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