IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100030477 


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 an honorable discharge.

2.  The applicant states he should receive an honorable discharge because of post traumatic stress disorder (PTSD) and the Army never evaluated his mental status because of his stress.

3.  The applicant provides a self-authored letter. 

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 a period of 3 years on            15 January 1965.  He completed the training requirements and he was awarded military occupational specialty 31B (Information Radio Mechanic).  The highest grade the applicant attained was specialist four/pay grade E-4.

3.  The applicant was convicted by a court-martial on the following dates:

   a.  On 3 December 1966, by a special court-martial for being absent without leave (AWOL) from 9 August 1966 to 25 October 1966.  The sentence consisted of a reduction to private/pay grade E-1 and a forfeiture of $59.00 pay for six months.

   b.  On 31 January 1968, by a special court-martial for being AWOL from        27 August 1967 to 14 January 1968.  His sentence consisted of confinement at hard labor for three months. 

4.  On 31 January 1968, the applicant was evaluated by a psychiatrist and was deemed mentally cleared for administrative separation.

5.  On 8 February 1968, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation   635-212 (Personnel Separations-Unfitness and Unsuitability) by reason of unfitness citing the applicant’s continuous disciplinary problems, being AWOL. 

6.  The applicant acknowledge receipt of the separation memorandum, consulted with legal counsel, and 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 that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He waived consideration of his case by a board of officers, waived personal appearance before of officers, and declined to make a statement in his own behalf.

7.  On 8 February 1968, the applicant’s intermediate commander concurred with the recommendation of the applicant’s immediate commander and recommended an Undesirable Discharge Certificate.

8.  On 14 February 1968, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 21 February 1968.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged with an undesirable discharge, characterized as under other than honorable conditions.  The DD Form 214 also confirms that he completed a total of 1 year, 3 months, and 18 days of creditable active military service and had 289 days of lost time.  His awards included the Combat Infantryman Badge and the Purple Heart.

9.  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 limitations. 

10.  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.

11.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge. 

2.  There is no evidence in the applicant’s records and the applicant did not provide any substantiating evidence that shows he suffered from any medical conditions during his military service or that his multiple instances of AWOL were caused by a medical condition.
3.  The evidence of record shows that the applicant had two convictions by special court-martial.   Accordingly, his chain of command initiated elimination action against him.  His discharge was in accordance with the applicable regulation and 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 renders his service unsatisfactory.  Therefore, the applicant 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)                                         AR20100030477





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ABCMR Record of Proceedings (cont)                                         AR20100030477



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