IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100016751 


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, an upgrade of his undesirable discharge to an honorable or general discharge.

2.  The applicant states he was not absent without leave (AWOL) on the dates his commander said he was.  He was at the hospital being counseled by the company officers, company cadre, and battalion personnel.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 214 (Report of Separation from Active Duty)
* Department of Veterans Affairs (VA) statement
* DA Form 20 (Enlisted Qualification Record)
* Two letters from the applicant to the VA
* Chapter 13 discharge packet
* Letter from the Army Board of Corrections for Military Records (ABCMR)
* Twenty seven pages of medical records

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 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 he enlisted in the Regular Army (RA) on 30 August 1972.  He completed the training requirements and he was awarded military occupational specialty 51R (Electrician).

3.  On 10 October 1972, while in basic training, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 1 October to 6 October 1972.
 
4.  On 17 July 1973, while in advanced individual training, he was convicted by a special court-martial of two charges of disobeying a lawful order and one charge of being AWOL from 9 May to 14 May 1973.

5.  On 23 August 1973, he was assigned to Headquarters Company, 5th Engineer Battalion, Fort Leonard Wood, MO.  On the same date, at the Mental Hygiene Clinic, Fort Leonard Wood, he was given a psychiatric evaluation and he was diagnosed with severe antisocial and severe passive-aggressive personality disorders.  He was cleared for any administrative action deemed appropriate by his chain of command.

6.  On 18 September 1973, his immediate commander recommended him for discharge under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 13, for frequent incidents of a discreditable nature.  The applicant's commander stated the applicant had not waived his right to appear before a board of officers.

7.  The applicant's DA Form 20, Item 44 (Time Lost) shows he was AWOL from his unit as follows:

* 3 October - 9 October 1972
* 29 January - 14 February 1973
* 9 May - 13 May 1973
* 4 September - 10 September 1973
* 1 November - 18 November 1973
* 20 November - 30 November 1973
* 4 January - 4 January 1974

8.  On 13 December 1973, he consulted with legal counsel and he was advised discharge action was being initiated against him under the provisions of Army Regulation 635-200, chapter 13, the effect on future enlistment in the Army, the possible effects of an undesirable discharge and of the procedures and rights that were available to him.  He acknowledged he understood that if he were issued an undesirable discharge he could expect to encounter substantial prejudice in civilian life and he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  He waived consideration of his case by a board of officers and elected not to submit a statement on his own behalf.

9.  On 15 December 1973, the applicant's commander recommended that he be eliminated under the provisions of Army Regulation 635-200, chapter 13.  The applicant had returned from an AWOL status on 1 December 1973.  He was placed in pre-trial confinement on 3 December 1973 and he had withdrawn his request to appear before a board of officers.

10.  On 21 December 1973, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 13 for unfitness, directed he be issued an undesirable discharge, and reduced to the lowest enlisted grade.  

11.  On 4 January 1974, he was discharged while in an AWOL status.  His 
DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13, with an Undesirable Discharge Certificate.  He completed a total of 1 year and 2 months of creditable active service with 63 days of lost time.

12.  On 30 May 1974, he enlisted in the RA.  On 30 October 1974, he was convicted by a special court-martial on two charges of disobeying a lawful order, for being AWOL from 9 to 14 September 1974, for failure to repair, and for being disrespectful.  On 12 March 1975, he accepted NJP under Article 15, UCMJ, for failure to repair and for dereliction in the performance of his duties. 

13.  On 25 March 1975, he was discharged under the provisions of Army Regulation 635-200, paragraph 5-37, expeditious discharge program for failure to maintain acceptable standards for retention.  The DD Form 214 he was issued for this period of service confirms he received a general discharge.  He completed a total of 8 months and 7 days of creditable active service with 48 days of lost time.  There is no indication his command was aware of his previous enlistment or his undesirable discharge.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  On 6 November 1996, the ABCMR denied his request for an upgrade of his general discharge.  The Board determined the alleged error or injustice occurred on 25 March 1975 and he failed to file his request for correction by 25 March 1978.  As such, he had not presented and the records did not contain sufficient justification to grant the relief requested or to excuse the failure to file within the time prescribed by law.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contains the policy and outlines the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

17.  Army Regulation 635-200, paragraph 5-37, in effect at the time, provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the Expeditious Discharge Program.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  

18.  Army Regulation 635-200, 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.

19.  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 applicant contends he was not AWOL when his commander said he was and his undesirable discharge should be upgraded to an honorable or general discharge.  

2.  There is no evidence in his record nor did he provide any evidence that shows he was not AWOL on any of the dates he was reported as AWOL.

3.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for being AWOL and the special court-martial he received for AWOL and disobeying lawful orders.  Accordingly, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13.

4.  The applicant's separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to a general or an honorable discharge for this period of service.

5.  In addition, he fraudulently enlisted in the RA on 30 May 1974.  The evidence of record shows during this period of service he was convicted by a special court-martial on two charges of disobeying a lawful order, being AWOL, failure to repair, and for being disrespectful.  He also received NJP under the UCMJ for failure to repair and for dereliction in the performance of his duties.  Accordingly, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-37.

6.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  His general discharge was based on the fact that he was separated under the provisions of Army Regulation 635-200, paragraph
5-37, expeditious discharge program for failure to maintain acceptable standards for retention.  Therefore, the type of discharge directed for this period of service was appropriate considering all the facts of the case.
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)                                         AR20100016751



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100016751



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1