IN THE CASE OF:	  

		BOARD DATE:  19 April 2012

		DOCKET NUMBER:  AR20110021504 


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 changed to an honorable discharge due to physical disability. 

2.  The applicant states, in effect, that he was affected psychologically after having a hernia operation and suffered from post-traumatic stress disorder (PTSD); however, he did not know at the time and contends that had he been properly treated he would have been medically discharged.  He also states that he went into the Army to fight in Vietnam and was distraught when he was sent to Germany but he did not get the proper psychological evaluation to determine what was wrong with him.

3.  The applicant provides no additional documents with his application.

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 in New Haven, Connecticut on 13 September 1971 for a period of 2 years.  He completed his basic and advanced individual training as a cook at Fort Dix, New Jersey and was transferred to Germany on 3 March 1972 for assignment to the Army Security Agency Field Station – Augsburg.

3.  On 21 July 1972, he went absent without leave (AWOL) and remained absent in desertion until he was returned to military control at Fort Dix and charges were preferred against him.  He again went AWOL on 8 January 1973 and remained absent until he was arrested by civil authorities on 27 January 1973 for larceny, possession of marijuana, and possession of a weapon.  He was sentenced to incarceration for 1 year under the control of the Connecticut Department of Corrections. 

4.  On 25 April 1973, the applicant was notified that action was being taken to discharge him from the service under the provisions of Army Regulation 635-206 because of his conviction by civil authorities.

5.  On 27 August 1973, the applicant’s commander submitted a recommendation to discharge the applicant from the service under the provisions of Army Regulation 635-206, due to conviction by civil authorities.

6.  On 14 January 1974, after consulting with counsel, the applicant waived consideration of his case by a board of officer, elected not to submit a statement in his own behalf and stated that he did not intend to appeal his civil court conviction.  

7.  The appropriate authority (a major general) approved the recommendation for discharge on 21 January 1974 and directed that he be furnished an Undesirable Discharge Certificate.

8.  Accordingly, he was discharged under other than honorable conditions on 7 February 1974 under the provisions of Army Regulation 635-206, due to conviction by civil authorities.  He had served 2 years and 16 days of active service and had 129 days of lost time due to AWOL and 263 days of lost time due to civil confinement for a total of 391 days of lost time.

9.  On 24 May 1977, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and he contended at that time that he thought it unfair that he was discharged while in confinement and he believed that he should not have been judged as being AWOL for the period he was in confinement because the Army knew where he was.  After reviewing the available evidence the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge on 16 January 1979.

10.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation.  A discharge could not be initiated unless the individual concerned declined to appeal the civil conviction or until their appeals had been exhausted.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or AWOL.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors, which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case and properly characterize his service during the period in question.

3.  The applicant’s contentions have been noted.  However, given the seriousness of his offenses and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his 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)                                         AR20110021504





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ABCMR Record of Proceedings (cont)                                         AR20110021504



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