BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100014527 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to upgrade his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he does not understand why he received an undesirable discharge.  The criteria and reason for his discharge were not explained to him and he had no idea that his discharge was undesirable until he received cancellation notices during his substance abuse treatment at the Houston Michael E. DeBakey Department of Veterans Affairs Medical Center on 16 April 2010.

3.  He contends he had a 6th grade education at the time he entered the military and, in fact, was forced to enter the Army due to a plot which involved his family and the county judge.  He was offered the option of serving 25 years in prison for a crime he did not commit or joining the military.  He chose to join the military.

4.  He contends that during his enlistment he worked as a guard over the stockade.  He was ordered to fire upon individuals who tried to escape from the stockade; however, he failed to perform this mission.  Several individuals escaped from the facility and he was told he should have killed them.  The denial of this portion of his duties may have resulted in his undesirable discharge.

5.  The applicant did not provide any documentation in support of his request.



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 29 September 1970.  A copy of his DA Form 20 (Enlisted Qualification Record) shows he entered basic combat training on 6 October 1970 at Fort Leonard Wood, MO.

3.  Item 44 (Time Lost under Section 972, Title 10, U.S. Code and Subsequent to Normal Date of Expiration of Term of Service) of his DA Form 20 shows he had six periods of absence without leave (AWOL) beginning 31 October 1970 and ending 26 July 1971 for a total of 202 days.

4.  On 22 March 1971, he was convicted contrary to his plea of not guilty by a special court-martial at Fort Sill, OK, of being AWOL from 31 October 1970 to 5 March 1971.  He was sentenced to 95 days of confinement and forfeiture of $45.00 pay for 4 months.  The sentence was approved and ordered executed on 26 March 1971.

5.  On 25 June 1971, he was convicted pursuant to his plea by a special court-martial at Fort Sill of being AWOL from 13 May 1971 to 12 June 1971.  He was sentenced to 5 months of confinement and forfeiture of $75.00 for 5 months.  On 1 July 1971, the special court-martial convening authority approved a sentence of 2 months of confinement and forfeiture of $75.00 for 2 months.

6.  His records show he was given a mental status evaluation which indicated his behavior was normal, he was fully alert, his mood and thought contents were normal, and his thinking process was clear.  He showed no sign of mental illness and was mentally responsible and able to distinguish right from wrong.  He also met the retention standards as prescribed in Army Regulation 40-501 (Standards of Medical Fitness) and had the mental capacity to understand and participate in board proceedings.

7.  On 1 July 1971, he was given an evaluation by the chaplain.  The chaplain noted that after examination of the applicant, he believed he was not amenable for further rehabilitation.  He recommended he be discharged under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).

8.  On 12 July 1971, the company commander initiated separation action against the applicant under Army Regulation 635-212 (Discharge-Unfitness and Unsuitability).  He stated the reason for this action was the applicant's two special court-martial convictions, his lack of motivation, and his negative attitude towards his military responsibilities.

9.  On 13 July 1971, the applicant consulted with the defense counsel at Fort Sill and was advised of his rights.  He waived his rights to have his case considered by a board of officers, to a personal appearance, and to representation by counsel.  He elected not to submit any statements on his own behalf.

10.  The applicant also indicated he was aware that as a result of the issuance of an undesirable discharge, he may be ineligible for any or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life based on that undesirable discharge.

11.  On 27 July 1971, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-212 and directed that he be issued an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged under other than honorable conditions on 27 July 1971 under the provisions of Army Regulation 635-212 by reason of unfitness.  The applicant completed 3 months and 7 days of creditable active service with 202 days of lost time due to AWOL and confinement.  He was awarded the National Defense Service Medal.

13.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities or an established pattern showing dishonorable failure to pay just debts were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort was unlikely to succeed.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgrade to an honorable discharge because the criteria and reason for his discharge were not explained at the time.  His contentions were carefully considered; however, they are not sufficiently mitigating to warrant upgrade of his discharge.

2.  The applicant's records show he was convicted by two special courts-martial.  In addition to his two court-martial convictions, his commander noted his lack of motivation and negative attitude toward his military responsibilities as persistent problems.

3.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons were therefore appropriate considering all of the available facts of the case.  In view of the foregoing, there is insufficient evidence to grant the 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 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)                                         AR20100014527



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ABCMR Record of Proceedings (cont)                                         AR20100014527



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