IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100027886 


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, correction of his record to show he received a general discharge (GD) in lieu of the undesirable discharge he was issued.

2.  He states, in effect, he was told that he would get a GD and this was the only reason he agreed to a discharge.  He also states he is homeless, has end-stage liver disease and needs to continue treatment at the Department of Veterans Affairs (VA).  He further states he did not realize he had an undesirable discharge.

3.  He provides a statement from a VA social worker and VA medical records.

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 24 May 1965.  After completing initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman). 

3.  On 19 January 1966, Headquarters, Special Troops, Fort Riley, KS, issued Special Court-Martial Order Number 57 which shows he pled guilty and was found guilty of being absent without leave (AWOL) from on or about 14 October to 18 November 1965.  He was sentenced to be reduced to the grade of private/E-1, to perform hard labor without confinement for 3 months, and to a forfeiture of $35 pay for 3 months.  Only that portion of the sentence pertaining to the forfeiture of pay and reduction in grade were ordered to be executed.

4.  On 27 May 1966, Headquarters Company, United States Army Garrison, Fort Hood, TX, issued Special Court-Martial Order Number 246 which shows he pled guilty and was found guilty of being AWOL during two periods:  11 to 18 March 1966 and 25 March to 21 April 1966.  He was sentenced to be confined at hard labor for 6 months and to a forfeiture of $17 pay for 6 months.  The sentence was approved and ordered to be executed.

5.  On 3 September 1966, Headquarters, United States Army Garrison Troops, Fort Hood, TX, issued Special Court-Martial Order Number 454.  This order vacated the suspended portion of his sentence pertaining to confinement at hard labor and directed that he be confined in the post stockade.

6.  On 25 November 1966, a psychiatrist examined him, diagnosed him with passive dependent personality, and recommended that he be separated from the military under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability).  The psychiatrist found no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He further found the applicant was mentally responsible, able to distinguish right from wrong, and to adhere to the right.  He also had the mental capacity to understand and participate in board proceedings.

7.  On 20 January 1967, Headquarters, U.S. Army Garrison Troops, Fort Hood, TX, issued Special Court-Martial Order Number 42 which shows he was charged with one specification of being AWOL from on or about 21 June to 1 September 1966.  The order shows the charge was dismissed on 27 December 1966 on the grounds of a lack of a speedy trial.





8.  Item 44 (Time Lost) of his DA Form 20 (Enlisted Qualification Record) shows he was AWOL or in confinement during the following periods:

                        AWOL

Confinement
14 October - 17 November 1965
11 - 17 March 1966
25 March - 20 April 1966
21 June - 31 August 1966
18 - 22 November 1965
18 - 21 March 1966
16 May - 6 June 1966
1 September 1966 - 8 January 1967
9.  On 27 January 1967, Headquarters, III Corps and Fort Hood, Fort Hood, TX, issued Special Orders Number 25 which show he was to be discharged effective the date of the orders.  The orders show he was to receive an under conditions other than honorable discharge [Undesirable Discharge Certificate] by reason of unfitness - frequent involvement in incidents of a discreditable nature.  

10.  The complete facts and circumstances of the applicant's discharge are not contained in the available records.  However, his records contain a DD Form 214 showing he was discharged on 27 January 1967 under the provisions of Army Regulation 635-212 with an Undesirable Discharge Certificate.  He completed 
9 months and 27 days of total active service with 302 days lost due to being AWOL and in confinement.

11.  The record is void of documentation showing he was told he would receive a GD.

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

13.  He provides a statement from a VA social worker showing he has received care from the VA, but the VA eligibility department found he received an "other than honorable discharge" making him ineligible for VA service.  The statement shows he needs medical care for liver disease.  The applicant's VA medical records confirm he has liver disease.  

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

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provides that a GD 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 evidence of record does not support the applicant's request for correction of his record to show he received a GD.  His discharge packet is not available and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  The ABCMR does not upgrade discharges solely for the purpose of making an applicant eligible for VA benefits.

3.  His record of service includes two special court-martial convictions and 302 days of lost time due to being AWOL and in confinement.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD.

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)                                         AR20100027886



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ABCMR Record of Proceedings (cont)                                         AR20100027886



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