IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100023118


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 that his undesirable discharge be upgraded to a general or honorable discharge.

2.  The applicant states, in effect, at the time of his discharge he had two brothers in Vietnam and his mother had just left his father, who had entered the Department of Veterans Affairs (VA) hospital to have his left eye removed.  He further states he requested [leave] to go home to see his father, but was denied.  His father was more than 60 years of age and all alone, so he went home.  He concludes by stating he has been a good person since his discharge.

3.  The applicant did not provide 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 records show he was inducted into the Army of the United States on 18 October 1967 and he was assigned to Fort Leonard Wood, MO for initial entry training.

3.  On 20 February 1968, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his appointed place of duty on 16 February 1968.  

4.  His DD Form 458 (Charge Sheet) is unavailable for review; however, his records contain a DD Form 493 (Extract of Military Records of Previous Convictions) which shows court-martial charges were preferred against him for one specification of being absent without leave (AWOL) and one specification of breaking restriction, on 1 March 1968. 

5.  On 5 March 1968, he was ordered to pre-trial confinement, pending trial by a special court-martial.  

6.  On 20 March 1968, at Fort Leonard Wood, MO, he was convicted by a special court-martial of being AWOL and breaking restriction on 1 March 1968.  He was sentenced to serve 1 month in confinement at hard labor.  The convening authority approved his sentence on 21 March 1968.

7.  His DD Form 493 shows he was reported AWOL on two separate occasions  from on or about 3 to 16 April 1968 and from on or about 20 to 23 April 1968.

8.  On 14 May 1968, at Fort Leonard Wood, MO, he was convicted by a special court-martial of 2 specifications of being AWOL from on or about 3 to 16 April 1968 and from on or about 20 to 23 April 1968.  He was sentenced to serve
3 months in confinement at hard labor and a forfeiture of $68.00 pay for
6 months.  The convening authority approved his sentence on 27 May 1968.

9.  On 14 June 1968, the applicant's commander notified him of his intent to initiate separation action against him, in accordance with Army Regulation 
635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  His commander advised him of his right to present his case to a board of officers, to submit statements on his behalf, to be represented by counsel, and to waive any of his rights in writing.  

10.  On 15 June 1968, he acknowledged receipt of the separation action and consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a less than honorable discharge was issued to him, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He elected to waive consideration of his case before a board of officers, a personal appearance before a board of officers, and representation by counsel.  He did not submit statements on his own behalf.

11.  On 23 July 1968, the applicant's commander initiated separation action against him under the provisions of Army Regulation 635-212, by reason of unfitness, citing the applicant’s "habits and traits of character manifested by repeated breaches of military discipline and a total lack of desire, marked by indifference to adjusting to the military."  His commander recommended that he be issued an Undesirable Discharge Certificate.

12.  The applicant's battalion and brigade commanders recommended approval of his request for discharge with an Undesirable Discharge Certificate on 29 July and 3 August 1968, respectively.  

13.  On 14 August 1968, the separation authority approved his request for discharge under the provisions of Army Regulation 635-212, by reason of unfitness, and directed that he be furnished an Undesirable Discharge Certificate.  

14.  On 19 August 1968, he was discharged from the Army, under the provisions of Army Regulation 635-212, by reason of unfitness, with an Undesirable Discharge Certificate, in pay grade E-1.  His DD Form 214 shows he was assigned Separation Program Number 283 (Misconduct/AWOL Trial Waived or Deemed Inadvisable).  He completed 6 months and 29 days of creditable active service during this period of service and he had 94 days of lost time.
 
15.  On 4 May 1973, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

16.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness and unsuitability.  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 (Personnel 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.  

18.  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, in effect, that his discharge should be upgraded based on personal problems at home.

2.  The available evidence shows the applicant received one NJP, multiple periods of AWOL, and two court-martial convictions; therefore, his commander initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  On 19 August 1968, he was discharged under the provisions of Army Regulation 635-212, by reason of unfitness, with an undesirable discharge.

4.  There is no evidence to indicate the applicant requested leave to take care of personal problems and he was denied.  Even if so, he had many other legitimate avenues through which to obtain assistance with his personal problems to include the post chaplain or the Red Cross without committing the misconduct which led to the separation action under review.

5.  Based on his record of indiscipline to include 94 days of lost time, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.






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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20100023118



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