IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100018638 


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 upgrade of his undesirable discharge to a general discharge.

2.  He states he was never offered counsel at the time of his discharge.  There was never a diagnosis of psychiatric problems before his service or during his service, nor was he afforded mental health treatment in the service.  He also states, in effect, he was drafted into the Army after graduating from high school in 1967.  He was looking forward to attending advanced individual training and flying to another state and becoming a real Soldier.  As he looked around everyone had boarded their assigned planes, but he could not understand why his name had not been called.  He felt forgotten and bewildered and he was told to go back to the barracks and wait for his drill sergeant.  He was told they had some kind of “hold” on him.  The next day he was restricted to the company compound and he feared he had done something wrong.

3.  He further states as time went by he worked in the mess hall and supply room.  In the Spring of 1969, he was given a weekend pass about 2 times.  While waiting for orders he became distraught and he went absent without leave (AWOL).  He was captured and returned to military control.  He was never advised or counseled about the ramification of his actions and was processed out of the Army.  If he was given the slightest of warnings of what he was signing, he would never have signed anything.  He would like to know what evidence showed he was unfit for military service.


4.  He provides no additional evidence.

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's military records show he was inducted into the Army of the United States (AUS) on 10 September 1969 for 2 years.  He did not complete advanced individual training and he was never awarded a military occupational specialty (MOS).

3.  He was reported AWOL on 17 November 1969 and he was dropped from the rolls of his unit as a deserter on 20 December 1969.  He returned to military control on 15 July 1970.

4.  A Fort Leonard Wood (FLW) Form (Report of Psychiatric Evaluation), dated 22 July 1970, shows he was diagnosed with a passive-aggressive personality disorder, severe.  There were no disqualifying mental or physical defects found to be sufficient to warrant disposition through medical channels under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The applicant was found responsible, both to distinguish right from wrong and to adhere to the right.  The applicant stated he felt negatively towards the Army and he was not prepared to adjust to it.  He further indicated that he would continue to go AWOL if not discharged.  He was cleared for any administrative decision deemed appropriate by the command.

5.  On 31 July 1970, after consulting with counsel, he acknowledged the proposed action to separate him from the service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  He acknowledged he could be issued a general or undesirable 

discharge and the results of the issuance of such a discharge.  He elected not to submit a statement in his own behalf.

6.  On 31 July 1970, the Special Processing Company commander requested the applicant's discharge.  The company commander stated the discharge was recommended because of the applicant’s repeated and lengthy periods of AWOL, excessive time lost in the service, resistance to authority and regulations, and a pattern of behavior which rendered the applicant a complete loss to the service.  The applicant’s performance was characterized by a lack of appropriate interest and his irresponsible attitude and lack of progress in the Army marked him as unfit for military service.

7.  On 3 August 1970, the Army Training Center commander recommended approval of the applicant’s discharge with the issuance of an undesirable discharge.

8.  On 8 August 1970, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the issuance of an Undesirable Discharge Certificate.

9.  He was accordingly discharged on 20 August 1970 in pay grade E-1 under the provisions of Army Regulation 635-212.  He was credited with completion of 3 months and 24 days of total active service with 229 day of time lost.

10.  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 when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel.  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's contention that his discharge should be upgraded to a general discharge has been noted.  However, the evidence of record shows he was inducted into the AUS on 10 September 1969.  He did not complete training for assignment in an MOS and he was never promoted beyond pay grade E-1.  He departed AWOL on 17 November and he was returned to military control on 
16 December 1969.  He again departed AWOL on 20 December 1969 and he was returned to military control on 15 July 1970.  He underwent a psychiatric evaluation and he was diagnosed with a passive-aggressive personality disorders.  No mental or physical defects sufficient to warrant medical separation were found and he was cleared for any administrative decision deemed appropriate by the command.

2.  The evidence of record also shows he stated that he felt negatively towards the Army and he would continue to go AWOL if not discharged.  The Special Processing Company commander stated the applicant’s repeated and lengthy AWOL, irresponsible attitude, and lack of progress marked him as unfit for military service.

3.  The evidence further shows that after consulting with counsel, he acknowledged the proposed separation action for unfitness.  He waived his opportunity to appear before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged the effects of the issuance or a general or an undesirable discharge.

4.  He has provided no evidence or argument to show his discharge should be upgraded and his military records contain no matter upon which an upgrade should be granted.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

5.  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)                                         AR20100018638



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ABCMR Record of Proceedings (cont)                                         AR20100018638



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