IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110002418


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, an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states, in effect, that his discharge was unfair and inequitable.  On an attached Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), he further states:

* he fell through a hay chute when he was 14 years old, resulting in a concussion and the loss of hearing in his right ear – this is one of the reasons he was treated unfairly and was given a bad discharge
* his lawyer tried to keep him from getting drafted
* he did not want to desert to Canada, but he felt as though his medical condition would prevent him from properly serving and he thought he would be treated fairly
* his lawyer assured him he wouldn't be trained as an infantryman and wouldn't have to qualify with a weapon, thereby damaging his hearing further
* after he was drafted, he was told he would be trained as an infantryman; however, his training cadre were not interested in his medical concerns
* he was afraid that, with his hearing loss, he would not be a good Soldier and would endanger others
* he was also afraid he would further damage the hearing in his good ear
* he was ignored so he made a youthful mistake by going absent without leave (AWOL) – he wishes he had not done that, but at the time he saw no other alternative as no one was willing to listen 
3.  The applicant provides:

* VA Form 21-4138
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* 6 pages of medical documentation related to hearing loss in his right ear
* DD Form 258A (Undesirable Discharge Certificate)
* a letter, dated 31 July 1970, from Mr. Howard F. Cxxxxxxx to a Member of Congress, Congressman James F. Hxxxxxxx
* an undated letter from the applicant's father

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.  On 30 October 1969, the applicant was given a pre-induction physical at the Armed Forces Examining and Entrance Station, Buffalo, NY.  His Standard Form (SF) 88 (Report of Medical Examination) contains the following entries:

* Item 73 (Notes) contains the entry "marked hearing loss R [right] ear"
* Item 76a (Physical Profile) contains a "2" in the "H" column, pertaining to hearing
* Item 77 (Examinee) is annotated to indicate the applicant was "qualified for induction"      

3.  On 14 July 1970, he was inducted into the Army of the United States for a     2-year term.  On 15 July 1970, he reported to the U.S. Army Reception Station at Fort Dix, NJ for basic combat training.  

4.  On 28 July 1970, he was reported AWOL from his unit and remained AWOL until he returned to military control on 28 October 1970.  

5.  On 28 January 1971, he was arraigned, tried, and found guilty of a single charge of AWOL before a special court-martial at Fort Dix.

6.  On 16 October 1971, court-martial charges were preferred against him for      2 specifications of a single charge of AWOL, during the periods 11 December 1970 through 6 January 1971 and 3 February through 19 October 1971.

7.  On 28 October 1971, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, he indicated he understood that if his request for discharge was accepted, he would normally be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He indicated he had been advised as to the possible effect of an undesirable discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

9.  On 15 December 1971, the separation authority approved his request for discharge and directed that he be issued an undesirable discharge.  On
7 January 1972, he was discharged accordingly.  His DD Form 214 shows he completed 5 months and 13 days of total active service with approximately 1 year and 11 days of time lost due to being AWOL.  

10.  His available record contains no documentation related to the applicant's attempts to address his physical limitations with his chain of command or officials at Fort Dix.

11.  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.

12.  He provides:

   a.  Six pages of medical documentation which establish that he had hearing loss in his right ear.

   b.  A letter, dated 31 July 1970, from Mr. Howard F. Cxxxxxxx to Congressman James F. Hxxxxxxx, requesting that the Congressman assist him in putting an immediate stop to this situation although it is unclear as to what the specific situation he refers to is – the applicant's induction as a whole, or the fact that he was forced to qualify with a weapon.

   c.  An undated letter from the applicant's father, in which he elaborates on the accidents that resulted in the applicant's hearing loss and speculates on how his son's hearing loss would impact his ability to serve.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged an undesirable discharge was appropriate.

14.  Army Regulation 635-200, 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.

15.  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's contention that his discharge should be upgraded was carefully considered; however, there is insufficient evidence to support this claim.

2.  The ABCMR is sympathetic and understanding of the applicant's hearing loss; however, his medical condition neither explains nor excuses his lengthy periods of AWOL.  Additionally, he has submitted no evidence, and his available record contains no evidence, suggesting he attempted to resolve the matter of his physical limitations with his chain of command or officials at Fort Dix. 
3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  

4.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, including multiple periods of AWOL and a special court-martial conviction, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is entitled to neither a general nor 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)                                         AR20110002418



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