IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100022760 


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 his Undesirable Discharge be upgraded to a General Discharge, under honorable conditions.

2.  The applicant states he always wanted to serve his country.   He is writing in hopes that he can get some understanding of some of his actions.  He submitted this statement:
* He joined the Marine Corps in 1967, only served for 37 days
* He was medically discharged under honorable conditions 
* He joined the US Army 5 June 1969 
* He went absent without leave (AWOL), committed a crime and was incarcerated in civilian jail for 6 months
* He was taken to Fort Leonard Wood, MO (under military control)
* He was discharged from the Army and was given an Undesirable Discharge.

3.  The applicant provided a self authored letter in support of his request.  He states that being young is not an excuse for his actions and would do almost anything to redeem himself.  He submits his request to the Review Board desiring to be issued a General Discharge under honorable conditions.

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 for 2 years on 5 June 1969.  He was assigned to Fort Knox, Kentucky to receive basic combat training, however, he did not complete training due to being AWOL and was dropped from the rolls on 1 October 1969.    

3.  He received several nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL).  On 7 August 1969, he was charged with the offense of being AWOL from on or about 4 August until on or about 5 August 1969.   His punishment was forfeiture of $17.00 of his pay.   He did not appeal this punishment. 

4.  On 28 August 1969, he was charged with the offense of being AWOL from on or about 16 August until on or about 20 August 1969.   His punishment was forfeiture of $37.00 of his pay and restriction to the company area for 30 days with an effective date of restriction beginning 2 September 1969.   He did not appeal any of these punishments. 

5.  On 2 September 1969, while still in a trainee status, he departed his unit in an absent without leave (AWOL) status and on 2 October 1969 he was dropped from the Army rolls as a deserter.  

6.  On 7 May 1970, while in a deserter status, he was convicted and sentenced by civil court to 168 days of confinement for forgery of a treasury check.  

7.  He was returned to military control (Fort Leonard Wood, Missouri) on 23 October 1970.  

8.  On 30 October 1970, counsel notified him that the commander was submitting a recommendation for separation under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), due to being AWOL.

9.  He acknowledged receipt of the notification of his separation on 30 October 1970.  After consulting with counsel, he waived his rights and he elected not to submit a statement on his own behalf.

10.  He received a psychiatric examination on 30 October 1970.  His diagnosis was "Passive-Aggressive Personality Disorder (Severe).”  The findings of this examination show that the applicant – met the retention standards as prescribed in Chapter 3, AR 40-501; there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels UP AR 635-40; he did not have severe character and behavior disorder with distinct violent tendencies, i.e., homicidal or suicidal in nature; he did have severe character and behavior disorder with no violent tendencies, but believed not to be amenable to further rehabilitative efforts or to have the potential to become an effective Soldier;  it is believed that he will not adjust to further military service and further rehabilitative efforts probably will not be productive;  he was and is responsible, both to distinguish right from wrong and adhere to the right, and has the mental capacity to understand and participate in board proceedings; he is cleared for any administrative decision deemed appropriate by command.  The psychiatrist further stated that the applicant did not want to be in the army and will continue to present problems if not discharged.

11.  On 10 November 1970, the commander (Trainee Personnel Section) at Fort Leonard Wood, Missouri, recommended him for separation under the provisions of paragraph 46a of Army Regulation 635-206 (Misconduct - Conviction by Civil Court, AWOL, Desertion) by reason or desertion/AWOL. The unit commander also recommended that he be issued a DD Form 258A (Undesirable Discharge Certificate).  The battalion and brigade commanders concurred with the unit commander's recommendations.

12.  On 30 November 1970, the separation authority directed that he be discharged under the provisions of Army Regulation 635-206 and issued an Undesirable Discharge Certificate.

13.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-206 on 11 December 1970 with an under other than honorable conditions characterization of service and issued an Undesirable Discharge Certificate.  He was credited with 4 months and 11 days of active service on his 2-year enlistment.  He had 421 days of lost time due to being AWOL.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitation.

15.  Section VII, paragraph 45b of Army Regulation 635-206, then in effect, stated that an individual may be considered for discharge when the unauthorized absence has continued for more than 1 year.  This regulation also provides that an individual discharged by reason of desertion or AWOL under this section will normally be furnished an Undesirable Discharge Certificate except that an Honorable or General Discharge Certificate may be furnished if the individual being discharged has been awarded a personal decoration, or if warranted by the particular circumstances in a given case.

16.  Army Regulation 635-200 (Enlisted 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.

17.  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's contention that his undesirable discharge should be upgraded to a general discharge under honorable conditions was carefully considered and determined to lack merit.

2.  The applicant's record reveals a disciplinary history that includes extensive AWOL time and a civilian court conviction while serving on active duty.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to an honorable discharge or to a general discharge under honorable conditions.

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
ABCMR Record of Proceedings (cont)                                         AR20100022760



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ABCMR Record of Proceedings (cont)                                         AR20100022760



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