IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110017691 


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 an upgrade of his undesirable discharge to an honorable discharge.

2.  He states his undesirable discharge should have been changed to honorable under the amnesty law.  His wife experienced a crisis pregnancy during this time (October 1970) resulting in the death of their son.  He states he requested a hardship discharge with honorable conditions but was given an undesirable discharge which he took because he had no other choice. 

3.  He provides his wife's Menorah Medical Center discharge summary.

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 30 April 1969.  He did not complete training and was not awarded a military occupational specialty.  The highest rank/grade he held was private/E-2.

3.  He accepted nonjudicial punishment (NJP) on 6 August 1969 for being absent without leave (AWOL) from 23 July to 5 August 1969.

4.  On 31 October 1969, pursuant to his guilty plea, he was convicted by a special court-martial of being AWOL from 24 August to 28 September 1969.

5.  On 5 May 1970, court-martial charges were preferred against him for being AWOL from on or about 19 January to on or about 2 May 1970 and from on or about 11 May to on or about 9 August 1970.

6.  His notification of consideration for discharge is not available.

7.  On 19 October 1970, he acknowledged he was advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  He acknowledged he understood if an undesirable discharge under conditions other than honorable was issued to him, he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  The applicant then waived his rights.  He did not submit a statement on his own behalf.

8.  On 26 October 1970, the separation authority approved the applicant's elimination from the service because of unfitness.  He directed the applicant be given an Undesirable Discharge Certificate.

9.  On 30 October 1970, he was given an undesirable discharge under the provisions of Army Regulation 635-212, by reason of unfitness due to frequent incidents of a discreditable nature with civil or military authorities, with his service characterized as under other than honorable conditions.  His DD Form 214 shows he completed a total of 8 months and 11 days of active military service with 290 days of time lost.

10.  The Menorah Medical Center discharge summary, dated 6 October 1970, shows:

* his wife was admitted on 6 October 1970
* had an uncomplicated prenatal course (defined as low risk pregnancy)
* the baby died within 24 hours of delivery
* his wife did well postpartum
* his wife was dismissed on 8 October 1970  

11.  On 28 June 1972, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his undesirable discharge.

12.  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 6 stated an individual was subject to separation for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

15.  On 4 April 1977, the Department of Defense (DOD) directed each armed service to conduct a review of discharges of former service members who were discharged between 4 August 1964 and 28 March 1978, with an undesirable or a general discharge.  This program was entitled the DOD Special Discharge Review Program (SDRP).   The program mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Eligibility for the program was restricted to individuals discharged with either an undesirable discharge or a general discharge between 9 August 1964 and 28 March 1973, inclusive.  Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service;  received an honorable discharge from a previous tour of military service; or completed alternate service or excused there from in accordance with Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act of misconduct that would be subject to criminal prosecution under civil law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge under other than honorable conditions should have been upgraded to an honorable discharge under the provisions of the SDRP.  However, this program was restricted to the prescribed eligibility criteria.  Therefore, he was not eligible for an upgrade under SDRP. 

2.  His periods of AWOL began long before his wife delivered a baby that died within 24 hours of delivery.  The medical center summary indicates she had a normal low risk pregnancy and that she did well postpartum.

3.  He was discharged under the provisions of Army Regulation 635-212 by reason of unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He received NJP for being AWOL and he was convicted by court-martial of being AWOL.  Court-martial charges were preferred against him for subsequent periods of AWOL.  His records show he accrued a total of 290 days of time lost.  
 
4.  Based on the applicant's misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory. 
 
5.  In view of the foregoing, he is not entitled to an honorable or a general 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)                                         AR20110017691



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ABCMR Record of Proceedings (cont)                                         AR20110017691



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