IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100021019 


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 an upgrade of his undesirable discharge (UD) to an honorable discharge. 

2.  He states even though he was absent without leave (AWOL) for 247 days, in his estimation his reason at the time was compelling and justifiable.  He came from quite a large family (12 siblings).  During his time in the service 7 of those siblings were underage and still at home with his parents.  His father worked sometimes on double shifts just to put food on the table and his mother was not in the best of health.  His sense of obligation to his family unfortunately clouded his judgment with the relevant factor causing him to go AWOL after a 30-day leave.  During those 247 days he spent that time caring for his ailing mother, helping his father who had no choice but to work, and taking care of the 7 younger siblings.

3.  He also states it is important to note that at no time was he arrested; he returned to the Army on his own.  Once returned, he received a court-martial at which time he was told he would receive a UD.  He was informed he could petition the Army to have it upgraded.  When he returned home he got a job, got married, and had a family.  He forgot about the AWOL status and never followed through on getting his discharge upgraded.  Presently, he is retired after working 39 years for the same company and he is suffering from a debilitating disease (Lou Gehrig's) which affects his nervous system.  He now realizes that due to his UD he is barred from Department of Veterans Affairs (VA) benefits, the most important being use of the VA Medical Center for treatment.

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 was inducted into the Army of the United States on 20 April 1962.  He was honorably discharged on 21 June 1962 for the purpose of enlistment in the Regular Army.

3.  He enlisted in the Regular Army in pay grade E-1 on 22 June 1962 for a period of 3 years.  He completed training and he was awarded military occupational specialty 763 (Ordnance Supply Specialist).  He served in Korea from 15 October 1963 through 16 July 1964.  He was advanced to pay grade E-3 on 20 February 1963. 

4.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UMCJ) for the following:

* 21 February 1963, for failing to go at the time prescribed to his appointed place of duty on 21 February 1963
* 19 March 1963 for AWOL (5 days)
* 16 July 1963 for AWOL from 18 June to 15 July 1963

5.  He was reduced to pay grade E-1 on 30 July 1963 for misconduct.  He was again advanced to pay grade E-2 on 20 September 1963 and to pay grade E-3 on 2 December 1963.

6.  On 6 March 1964, a DD Form 458 (Charge Sheet) was prepared by the Commander, 36th Ordnance Company.  He was charged with disorderly conduct, to wit: fighting with another Soldier, on 25 February 1964.  


7.  On 11 March 1964, he was convicted by a summary court-martial of one specification of fighting in the camp with another Soldier on 25 February 1964.  He was sentenced to a forfeiture of $60.00 pay per month for 1 month and a reduction to pay grade E-1.  His sentence was approved on 12 March 1964.

8.  On 20 August 1964, he accepted nonjudicial punishment under Article 15, UCMJ, for AWOL from 10 to 13 August 1964.

9.  On 16 March 1965, he was convicted by a special court-martial of one specification of AWOL from 18 September 1964 to 5 March 1965.  He was sentenced to a reduction to pay grade E-1 and a forfeiture of $75.00 pay per month for 4 months.  His sentence was approved on 23 March 1965.

10.  A USAARMC OP 8, subject:  Mental Hygiene Consultation Service, dated
6 April 1965, shows he was diagnosed with a passive aggressive personality, chronic, moderate, manifested by obstructive behavior, AWOL, and failure to assume responsibility for behavior.  The applicant stated the problems that caused him to be AWOL for 178 days had now been solved and he wished to return to duty.  He was found to be mentally responsible and able to distinguish right from wrong and to adhere to the right.  He was found to have the mental capacity to understand the nature of any proceedings against him and to cooperate in his own defense.  The evaluating psychiatrist, an Army Medical Corps officer, found the applicant was not suffering from any disqualifying mental defects sufficient to warrant disposition through medical channels.  He was given psychiatric clearance for any administrative and/or disciplinary action deemed appropriate by the command.

11.  On 8 April 1965, the applicant's company commander recommended the applicant be eliminated from the service under the provision of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) with a UD.  The company commander stated that since the time of the applicant's enlistment for 3 years he had 4 periods of AWOL, 1 period of confinement, 2 convictions by court-martial, and he was once dropped from the rolls of the Army.  The applicant appeared before a U.S. Army Armor Center Clemency Board on 1 April 1965.  By a majority, the board recommended his elimination from the service under the provisions of Army Regulation 635-208.

12.  On 8 April 1965, he acknowledged the recommendation for discharge from the service under the provisions of Army Regulation 635-208 with a UD.  He requested his case be heard by a board of officers.


13.  On 16 April 1965, a board of officers recommended the applicant be discharged from service under the provisions of Army Regulation 635-208 for unfitness, with issuance of a UD. 

14.  On 22 April 1965, the separation authority approved the board of officers' recommendation.

15.  Accordingly, he was discharged on 29 April 1965 in pay grade E-1 under the provisions of Army Regulation 635-208 with a UD.  He was credited with completing 2 years, 2 months, and 3 days of net active service with 247 days of time lost.

16.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness.  The regulation stated that individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined that an individual's military record was characterized by one or more of the following:

	a.  frequent incidents of a discreditable nature with civil or military authorities;

	b.  sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses;

	c.  drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana;

	d.  an established pattern for shirking; or

	e.  an established pattern showing dishonorable failure to pay just debts.

18.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally meets the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

19.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was punished under Article 15 on four occasions, he was charged and convicted by two special courts-martial, and he had 1 period of confinement.

2.  On 1 April 1965, an USAARMC Clemency Board recommended his discharge under the provisions of Army Regulation 635-208.  Upon notification of this recommendation, he acknowledged he could receive a UD and he elected to have his case heard by a board of officers.  On 16 April 1965, a board of officers recommended his discharge for unfitness with a UD.  He was discharged on
29 April 1965 and issued a UD.

3.  There is no evidence in the available records and he did not provide any evidence to show he was denied due process or that his rights were violated.   He has provided no evidence to show his separation was unjust or that he was experiencing any personal problems which prevented him from completing his enlistment.  He has provided neither probative evidence nor a convincing argument in support of an upgrade of his UD.  The evidence shows his misconduct diminished the quality of his service below that meriting an honorable or a general discharge.

4.  The evidence of record confirms his discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  His desire to have his UD upgraded so that he can qualify for medical and/or other benefits administered by the VA is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.


7.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100021019



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ABCMR Record of Proceedings (cont)                                         AR20100021019



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