IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120011418 


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, upgrade of his undesirable discharge.

2.  The applicant states his discharge should be upgraded because he was not physically or psychologically fit to enter the service in the first place and he was drafted and forced to go anyway.  Additionally, he became a heroin addict while in the service.

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* documents from his medical records
* a letter from a psychiatrist, dated 30 March 1968

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 was inducted into the Army of the United States in South Carolina on 9 July 1968.  He completed his basic combat training at Fort Jackson, SC and he was transferred to Fort Lee, VA to undergo his advanced individual training (AIT) as a cook.

3.  On 5 November 1968, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty (kitchen police (KP)) and for disobeying a lawful order from a superior noncommissioned officer (NCO).

4.  He completed his AIT and he received orders transferring him to Oakland Army Base, CA for further assignment to Vietnam.  His report date to Oakland Army Base was 28 December 1968; however, he failed to report as ordered.  He was subsequently reported as being absent without leave (AWOL) until he was returned to military control at Fort Dix, NJ on 24 November 1969.  As a result, charges were preferred against him for the absence.

5.  On 10 December 1969, he was convicted by a special court-martial of being AWOL from 28 December 1968 to 23 November 1969.  He was sentenced to confinement at hard labor for 5 months, a forfeiture of pay, and reduction to the pay grade of E-1.

6.  The applicant was transferred to Vietnam with orders to report to the overseas replacement detachment at Fort Lewis, WA on 30 April 1970.  He did not report until 6 May 1970 and NJP was imposed against him for that absence.  He arrived in Vietnam on 9 May 1970 and on 12 July 1970 he was medically evacuated to the 249th General Hospital at Camp Drake, Japan and subsequently to the hospital at Fort Gordon, GA for what appears to be a back injury.

7.  On 1 August 1970, he was transferred to Fort Lewis, WA.  On 28 August 1970, he accepted NJP under Article 15, UCMJ for being absent from his place of duty and for being disrespectful towards a superior commissioned officer and NCO.

8.  On 14 January 1971, he accepted NJP under Article 15, UCMJ for disobeying a lawful order from a superior NCO.

9.  On 1 April, 28 June and 30 July 1971, he accepted NJP under Article 15, UCMJ for failing to go at the time prescribed to his appointed place of duty.

10.  On 13 August 1971, the applicant underwent a psychiatric evaluation and he was diagnosed as having a passive-aggressive personality, chronic, moderate, manifested by conflict with authority.  The examining psychiatrist opined he was mentally responsible and he was able to distinguish right from wrong and to adhere to the right.  He cleared the applicant for any administrative action deemed appropriate by the command.

11.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Seattle, WA in 1971.  However, his record contains a
DD Form 214 that shows he was discharged on 8 September 1971 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness due to an established pattern of shirking, with issuance of an Undesirable Discharge Certificate.  He completed
1 year, 10 months, and 2 days of total active service with 478 days of time lost due to AWOL and confinement.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 14 September 1977, the ADRB found that his discharge was both proper and equitable under the circumstances and denied his request.

13.  Army Regulation 635-212, in effect, at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities or established a pattern of shirking were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors that 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.

3.  The applicant’s contentions have also been noted.  There is no evidence to show he was physically or psychologically unfit to enter the service.  

4.  The offenses committed by the applicant were too numerous and too serious and his overall record of service is too undistinguished for equitable relief to be appropriate.  His service simply does not rise to the level of under honorable conditions.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20120011418



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ABCMR Record of Proceedings (cont)                                         AR20120011418



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