BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100023060 


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.

2.  He states he was an excellent Soldier until he returned stateside and got hooked on drugs.  He adds he had not slept for days when he was placed on guard duty.  He offers he returned on his own to Fort Bliss, TX because the first sergeant said if he returned within 30 days he would be lenient.  However, he maintains he was court-martialed and two days later he went absent without leave (AWOL).  He adds he got shot while trying to escape and he was ashamed, but did not say anything until he became sick from the lead pellets.  He concludes that he has been punished enough and would like a chance at some kind of a life.

3.  He provides the following:

* self-authored statement
* extract of medical records
* page 3 of his DA Form 20 (Enlisted Qualification Record)

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 15 September 1967 for a period of 3 years.  He served in Korea from 15 February 1968 to 8 February 1969.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the following offenses:

* on 11 April 1969 for failing to go at the time prescribed to his appointed place of duty on 7 April 1969 and for being absent from his unit from 0730 until 1630 hours on the dame day
* on 5 May 1969 for being absent from his unit from 0600 hours, 1 May 1969 to 1200 hours, 2 May 1969

4.  Headquarters, 6th Battalion, 61st Artillery, Fort Bliss, Special Court-Martial Order Number 34, dated 11 August 1969, shows he was found guilty of sleeping on his post while being posted as a sentinel and being AWOL from 1 July 1969 to 25 July 1969.

5.  Headquarters, Special Troops, U.S. Army Training Center, Infantry, Fort Polk, Louisiana, Special Court-Martial Order Number 250, dated 4 March 1970, shows he was found guilty of being AWOL from 17 November 1969 to 29 January 1970.

6.  On 20 August 1970, he underwent a mental status evaluation and he was determined to be mentally cleared for separation by the examining psychiatrist.  The psychiatrist said there were no disqualifying mental defects sufficient to warrant disposition through medical channels.  He said the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

7.  On 31 August 1970, he consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to 

him, he waived his right to consideration of his case by a board of officers, to personal appearance before a board of officers, and to counsel.  He also elected not to submit statements in his behalf.

8.  He acknowledged that he may be furnished an Undesirable Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life because of discharge under other than honorable conditions.

9.  On 8 September 1970, the Commander, Special Processing Detachment, Fort Polk, recommended his separation under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability) for unfitness.  The commander stated the discharge was recommended because of his failure to function as a Soldier, four periods of AWOL, two special courts-martial, and his complete lack of motivation for rehabilitation.

10.  Although a copy of the separation authority's approval of the applicant's discharge under the provisions of Army Regulation 635-212 for unfitness in not contained in the available record, his DD Form 214 shows he was discharged on 17 September 1970 with service characterized as under other than honorable conditions with issuance of an Undesirable Discharge Certificate.  The reason and authority for discharge was listed as Army Regulation 635-212 with separation program number (SPN) 28B (unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities).  He completed 2 years, 2 months, and 15 days of total active service with 291 days of time lost.

11.  The applicant provided extracts from his medical records that show he was treated on 16 October 1969 for shotgun wounds that occurred two months prior to his treatment date.

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

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness.  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.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 argues, in effect, that his discharge should be upgraded because he was an addict.  There is no evidence in the available records to show the applicant had an addiction problem during his period of military service and/or sought counseling to correct this problem.  Therefore, the applicant’s contention that his use of drugs led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  Evidence of record shows he was separated for "unfitness" as recommended by the commander of the Special Processing Detachment for failing to function as a Soldier, four periods of AWOL, and two special court-martial convictions. These conditions are consistent with the conditions cited for separation for unfitness.  Additionally, as stated in Army Regulation 635-212, when separation for unfitness was warranted an undesirable discharge was normally considered appropriate.  

3.  The available evidence indicates that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

4.  He must provide evidence to prove his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  He failed to provide such evidence.

5.  In view of the foregoing, there is no basis for granting the applicant’s request. 

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)                                         AR20100023060



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ABCMR Record of Proceedings (cont)                                         AR20100023060



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