IN THE CASE OF:	  

		BOARD DATE:	  8 May 2012

		DOCKET NUMBER:  AR20110020580 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states there is no error in his discharge, but he does believe it is too harsh.  He contends his undesirable discharge was the result of his mental condition and the undue stress he was experiencing at the time.  He has recognized the mistakes he made as a young man and he regrets it to this day.

3.  The applicant provides copies of:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 24 February 1964
* DD Form 214 for the period ending 7 March 1973
* Four letters of support from his employer and friends

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 1962, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 550.10 (Supply Handler).  He was subsequently assigned to the Republic of Korea (ROK).

	a.  On 6 April 1963, he was assigned to the 7th Administration Company,
7th Infantry Division for duty as a supply handler.

	b.  On 27 April 1963, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for dereliction in the performance of his duties as a sentinel.

	c.  On 24 October 1963, he was advanced to the rank/grade of specialist four (SP4)/E-4.

3.  On or about 8 April 1964, he returned to the United States for duty at Fort Benning, GA.

	a.  On 18 May 1964, he was assigned to the 611th Aircraft Maintenance Battalion.

	b.  On 22 June 1964, he was promoted to sergeant (SGT)/E-5.

4.  On 24 July 1965, the applicant was reassigned to the 174th Ordnance Detachment located at Aberdeen Proving Grounds, MD.  On or about 
27 August 1965, he was reassigned with this unit to the Republic of Vietnam (RVN).

5.  On or about 26 August 1966, the applicant departed the RVN.  He was subsequently assigned in the ROK for duty with A Company, U.S. Army Camp Carroll Depot.

6.  On 30 January 1967, the applicant was promoted to staff sergeant (SSG)/E-6.

7.  On or about 4 August 1968, the applicant was assigned for a second tour of duty in the RVN with the 1st Logistics Command.


8.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Personnel Qualification Record) shows the following entries:

FROM
TO (Inclusive)
DAYS
REASON
17 Jun 69
19 Jul 69
32
AWOL
20 Jul 69
27 Oct 69
100
DFR – Desertion
12 Nov 69
22 Dec 69
41
AWOL
23 Dec 69
17 May 70
146
DFR - AWOL
13 Jul 70
18 Jul 70
6
AWOL
19 Jul 70
2 Aug 70
16
AWOL
3 Aug 70
3 Apr 71
245
AWOL
19 Jul 72
23 Nov 72
128
AWOL
	AWOL – Absent without leave
	DFR – Dropped from the rolls

9.  Special Court-Martial Orders Number 850, issued by Headquarters, Troop Command, U.S. Army Garrison, Fort Carson, CO, dated 23 June 1970, show the applicant was convicted of being AWOL from 16 June 1969 to 28 October 1969 and from 12 November 1969 to 18 May 1970.

10.  On 31 August 1972, the applicant, who was then in civilian confinement, was notified by his commander that he was being considered for elimination from the Army under the provisions of Army Regulation 635-206 (Personnel Separations –Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) due to conviction by a civilian court.  The applicant indicated in his response that he waived consideration of his case by a board of officers and he did not elect to submit a statement in his own behalf.

11.  On 23 January 1973, the applicant was notified that he was being processed for discharge under the provisions of Army Regulation 635-206.  He was again informed of his right to request appointment of military counsel, to have his case heard before a board of officers, and to submit statements in his behalf.  The applicant waived his rights and declined to appeal his civilian conviction.

12.  On 24 January 1973, at a mental status evaluation, the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content was normal, and his memory was good.  There was no significant mental illness.  The applicant was mentally responsible and he was able to distinguish right from wrong and to adhere to the right.  There is no evidence of record that the applicant experienced any mental condition or reported such condition to any officials during his active duty service.


13. On 6 February 1973, the separation authority approved the commander's recommendation for discharge under the provisions of Army Regulation 635-206 for conviction by a civil court with an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

14.  On 7 March 1973, he was discharged accordingly.  He completed 7 years,
1 month, and 19 days of total active service with 1,175 days of time lost due to AWOL and confinement.

15.  On 7 May 1980, the Office of the Adjutant General notified the applicant that the Army Discharge Review Board had considered and denied his request for an upgrade of his discharge.

16.  The four letters of support provided by the applicant essentially states he is a responsible, ambitious person whose integrity, compassion, and excellent character show him to be a caring and dependable person.  His employer stated the applicant has been a dependable and excellent employee for 5 years.

17.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of misconduct.  Paragraph 33 of the regulation provided that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

18.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures for the separation of enlisted personnel.

	a.  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.

	b.  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 undesirable discharge was the result of his mental condition was determined to be without merit.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant's record of good service was greatly diminished by the special court-martial he received for misconduct and outweighed by his civilian conviction that was the basis for his undesirable discharge.  As such, there is insufficient evidence or mitigating argument to warrant upgrading his discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110020580



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ABCMR Record of Proceedings (cont)                                         AR20110020580



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