IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100025240 


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, in effect, that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he was dishonorably discharged and he was never informed of his rights at his trial by anyone.  He goes on to state he was mentally incompetent at the time due to his marital problems and the birth of his fourth child.  He also states he was not capable of performing active duty and spent time in the mental hospital at Fort Dix, New Jersey.  He further states he continued being absent without leave (AWOL) to be with his wife and children and he never received guidance from his attorney or the court at his trial about the type of discharge he would receive.  He continues by stating his family is being deprived of benefits they deserve from his service.

3.  The applicant provides:

* a one-page letter explaining his application
* a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* copies of his marriage license and birth certificates for him, his wife, and his children
* a copy of his social security card and Selective Service classification



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 born on 24 March 1943 and he was inducted into the Army of the United States at Fort Hamilton, New York, on 2 November 1966.  He was married with four children and was separated from his wife at the time of his induction.  He was assigned to Fort Jackson, South Carolina, to undergo basic training.  He was AWOL from 19 November to 2 December 1966 and the record is silent as to any punishment imposed for that offense.

3.  The applicant again was AWOL on 1 February 1967 and remained absent until he was returned to military control at Fort Dix on 4 April 1967.  He again was AWOL on 5 April 1967.  He remained absent until he was returned to military control at Fort Dix on 4 May 1967 and charges were preferred against him for the AWOL offenses.

4.  On 15 May 1967, he underwent a neuropsychiatric examination and was found to be mentally responsible and able to distinguish right from wrong and to adhere to the right.  He was deemed to have the mental capacity to understand and participate in board proceedings.

5.  On 29 May 1967, he was convicted pursuant to his pleas by a special court-martial of being AWOL from 1 February to 4 April 1967 and 5 April to 4 May 1967.  He was sentenced to confinement at hard labor for 3 months.

6.  On 29 May 1967, the applicant escaped from custody immediately after his court-martial conviction and subsequently reported to the emergency room at Walson Army Hospital at Fort Dix after ingesting 13 Librium tablets.  He was treated for the ingestion and admitted for observation.

7.  On 13 July 1967, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability.  After consulting with counsel the applicant waived all of his rights and elected not to submit a statement in his own behalf.

8.  On 2 September 1967, the applicant was the subject of a Criminal Investigation Division investigation which revealed that the applicant and four other Soldiers were involved in breaking into other Soldiers' wall lockers and stealing money.  Additionally, the applicant was in possession of a stolen motor vehicle.

9.  The applicant was AWOL on 5 September 1967 and remained absent in desertion until he was returned to military control on 12 February 1969 and charges were preferred against him.  He again underwent a mental status evaluation on 28 February 1969 and was found to be mentally responsible.

10. On 24 April 1969, he was convicted pursuant to his pleas by a special court-martial of being AWOL from 5 September 1967 to 12 February 1969.  He was sentenced to restriction at the Special Processing Detachment for 60 days.

11.  On 26 May 1969, the applicant's commander initiated action to discharge him from the service under the provisions of Army Regulation 635-212 for unfitness based on his frequent involvement in incidents of a discreditable nature with civil and military authorities.

12.  After consulting with counsel the applicant again waived all of his rights and declined to submit a statement in his own behalf.

13.  The appropriate authority (a major general) approved the recommendation for discharge on 4 June 1969 and directed that he be furnished an Undesirable Discharge Certificate.

14.  Accordingly, he was discharged under other than honorable conditions on 12 June 1969 under the provisions of Army Regulation 635-212 for unfitness due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He completed 6 months and 4 days of active service and had 767 days of lost time due to AWOL and confinement.  He was still in a trainee status as he never completed basic training.

15.  There is no evidence in the available records to show he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states 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 sets forth the basic authority for the separation of enlisted personnel.  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 applicant's contentions and supporting documents have been considered; however, they are not sufficiently mitigating when compared to his repeated misconduct, the extensive length of his absences and his overall undistinguished record of service.  Additionally, discharges are not normally upgraded simply for the purpose of qualifying individuals for benefits.

2.  The applicant's administrative discharge under the provisions of Army Regulation 635-212 was accomplished in accordance with applicable regulations with no indication of any violations of the applicant's rights.

3.  Accordingly, the type of discharge directed and the reasons appear to be appropriate considering all of the facts of the case and an upgrade of his discharge to either honorable or general under honorable conditions is not warranted.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.



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 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)                                         AR20100025240



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ABCMR Record of Proceedings (cont)                                         AR20100025240



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