IN THE CASE OF:	  

		BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120012500 


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.

2.  He states he:

* is totally ashamed for what he did when he was young
* feels he has been a model citizen for many years

3.  He provides no additional documents.

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 17 April 1964 at the age of
18 years and 25 days.

3.  His record contains a DD Form 493 (Extract of Military Records of Previous Convictions), dated 8 December 1965, that lists the following Special Court-Martial (SPCM) convictions:

	a.  Order Number 846, dated 5 November 1964, for being absent without leave (AWOL) from 10 September to 10 October 1964;

	b.  Order Number 137, dated 4 February 1965, for being AWOL from 7January to 13 January 1965; and 

	c.  Order Number 586, dated 24 June 1965, for being AWOL from 7 May to 26 May 1965.

4.  His record contains a DA Form 788 (Psychiatric Examination), dated 24 November 1965.  The examining psychiatrist found the applicant suffered from emotional instability reaction, chronic, moderate, manifested by emotional attitudes, a tendency to use poor judgment under stress, and impulsivity.  The psychiatrist found the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  The psychiatrist further stated the lack of motivation and the personality deficits are factors that would render the applicant a risk for return to duty.  Therefore, he recommended the applicant be administratively separated from the service.

5.  On 10 December 1965, the applicant's commander initiated separation action against him in accordance with Army Regulation 635-208 (Personnel Separations-Discharge-Unfitness) for unfitness with a character of service of under other than honorable conditions with issuance of an Undesirable Discharge Certificate.  The immediate commander stated the discharge was recommended because that applicant had three periods of AWOL.

6.  On the same date, the applicant acknowledged he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-208 for unfitness.  He waived consideration of his case by a board of officers and waived a personal appearance.  The applicant indicated he was submitting statements in his own behalf and that he waived representation by counsel.  The applicant acknowledged that as a result of the issuance of an undesirable discharge he could expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that as a result of 


the issuance of an undesirable discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.

7.  On 20 December 1965, the separation authority approved the applicant's separation from the service under the provisions of Army Regulation 635-208, with the issuance of an Undesirable Discharge Certificate.  

8.  On 20 December 1965, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed 8 months and 10 days of total active service with 357 days of time lost due to AWOL.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-208, then in effect, sets forth the policy and procedures for administrative separation of enlisted personnel for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation provides that when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200, currently in effect, sets forth the policy and procedures for administrative 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 post-service accomplishments are noted and his contention regarding his being young was considered.  His record shows he was 18 years 


and 25 days of age at the time of his enlistment.  It further shows he was
18 years, 5 months, and 18 days of age when he departed his unit at the time of his first AWOL offense.  However, his record is void of any evidence showing he was any less mature than many other Soldiers his age who honorably completed their terms of service.

2.  The evidence of record shows he had three court-martial convictions under the UCMJ with a total of 357 days of lost time due to AWOL.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request for 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 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)                                         AR20120012500



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ABCMR Record of Proceedings (cont)                                         AR20120012500



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