IN THE CASE OF:	  

		BOARD DATE:	  18 April 2012

		DOCKET NUMBER:  AR20110021574 


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 honorable.

2.  The applicant states he was discharged under other than honorable conditions due to being absent without leave (AWOL).  He was young at the time and having a child with his girlfriend led to his AWOL.  His discharge was later changed to honorable in 2000 and he doesn't understand why his benefits are being denied 11 years later.  The Department of Veterans Affairs (VA) said he is not eligible for any benefits unless his discharge is upgraded to honorable.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a VA letter, a VA computer printout, and a National Archives and Records Administration questionnaire.

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's records show he was inducted into the Army of the United States on 16 April 1964 at 18 years of age and he held military occupational specialty 553.10 (Subsistence Storage Specialist).  He was promoted to the rank of private/E-2 on 6 August 1964.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on 12 November 1964 for being AWOL from 
7-12 November 1964.

4.  On 4 December 1964, he was reported AWOL from his assigned unit and on 2 January 1965 he was dropped from the rolls (DFR).

5.  On 15 January 1965, he was apprehended by civilian authorities and returned to military control.

6.  Headquarters, Special Troops, Fort Riley, KS, Special Court-Martial Order Number 107, dated 3 February 1965, shows he pled guilty and was found guilty by a special court-martial on 27 January 1965 of one specification of being AWOL from 4 December 1964 to 15 January 1965.

7.  On 14 February 1965, he was reported AWOL from his assigned unit and he was subsequently DFR.  On 1 March 1965, he was apprehended by civilian authorities and returned to military control.

8.  Headquarters, Special Troops, Fort Riley, KS, Special Court-Martial Order Number 243, dated 22 March 1965, vacated the unexecuted portion of Special Court-Martial Order Number 107 and ordered the applicant's confinement for 3 months executed.

9.  On 5 May 1965, he underwent a mental hygiene examination.  The examining psychiatrist stated the applicant related many external facts that caused his discontent but was unable to recognize anything about himself that may have led to trouble.  He stated the applicant's response to stress displayed a complete lack of judgment but determined there was no evidence of a psychotic thought disorder.  He determined the applicant had an inadequate personality disorder manifested by a lack of emotional and physical stamina, lack of ambition and realistic goals, emotional immaturity, and tolerance.  He stated the applicant was cleared for separation in accordance with Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) or Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability), whichever the command deemed appropriate.

10.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, the DD Form 214 he was issued shows he was discharged under other than honorable conditions on 8 July 1965 in the rank of PV1 by reason of unfitness for frequent incidents of a discreditable nature under the provisions of Army Regulation 635-208.  He completed 9 months and 15 days of creditable active service with 158 days of lost time due to AWOL and confinement.

11.  On 1 May 1974, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined his discharge was both proper and equitable.

12.  Army Review Boards Agency records reveal the applicant applied to the ABCMR in August 1998 to upgrade his discharge, but his case was administratively closed on 13 August 1999 due his records not being available at the time.  There is no other evidence of any other consideration of his case until his current application.

13.  Army Regulation 635-208, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when it was clearly established that despite attempts to develop him as a satisfactory Soldier, further effort was unlikely to succeed, rehabilitation was impracticable, and the individual was not amenable to rehabilitation.  This regulation prescribed that an individual discharged for unfitness would be furnished an undesirable discharge, except when an honorable or a general discharge was warranted by the particular circumstances.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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 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 evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for being AWOL and his court-martial conviction for being AWOL.  In addition, he was AWOL on a third occasion.  Accordingly, his immediate commander initiated separation action against him.

2.  His record is void of the complete facts and circumstances surrounding his discharge.  However, his DD Form 214 shows he was discharged for unfitness for frequent incidents of a discreditable nature under the provisions of Army Regulation 635-208.

3.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering the available facts of the case.

4.  The applicant contends his discharge should be upgraded because he was young at the time of his service.  Records show he was almost 19 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

5.  There is no evidence of record to show his discharge was upgraded in 2000.

6.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general discharge.

7.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making a person eligible for VA or other benefits.  Every case is individually decided based upon its merits.



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 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)                                         AR20110021574



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ABCMR Record of Proceedings (cont)                                         AR20110021574



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