BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120021988 


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 (UD) to a general discharge (GD).

2.  The applicant states he thought his DD Form 214 (Report of Transfer or Discharge), item 30 (Remarks) stated that after 10 years he would receive a GD. He has liver cancer and is being followed by the Department of Veterans Affairs. 

3.  The applicant provides a copy of his DD Form 214.

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 10 December 1965, the applicant was inducted into the Army of the United States and he did not complete advanced individual training (AIT).

3.  A summary court-martial found the applicant guilty of being absent without leave (AWOL) from 21 to 29 August 1966.  

4.  A special court-martial found the applicant guilty of being AWOL from 
16 September to 30 October 1966.  His sentence included confinement from 31 October to 25 November 1966.

5.  The applicant had a third period of AWOL from 11 December 1966 to 12 April 1967.  The available record does not include the complete disposition for this offense; however, he is shown to have been in confinement from 14 April to 
6 August 1967. 

6.  While in confinement, on 10 May 1967, awaiting trial for being AWOL, the applicant was interviewed/received a mental evaluation and he was diagnosed with a passive-dependent personality.  It was noted that the applicant had been AWOL four times in 8 months and the only problem that was taking place at home was a financial situation.  The applicant was "kicked out" of school after having completed 10 years of formal education.  It was the opinion of the attending psychiatrist that the applicant could not be rehabilitated to the extent that he could become an effective Soldier and he was a good candidate for administrative separation under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability). 

7.  The applicant's command initiated separation action under Army Regulation 635-212 for unfitness.

8.  The applicant acknowledged the separation action and waived all of his rights. 

9.  The separation authority approved the discharge recommendation and directed that the applicant be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.

10.  The applicant was discharged with a UD on 7 August 1967.  He had 9 months and 10 days of creditable service with 318 days of lost time.  His DD Form 214, item 30 (Remarks) contains the entry "10 Years – General."

11.  There is no indication the applicant applied to the Army Discharge Review Board within that board's 15-year statute of limitations.

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided that an individual was subject to separation for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted a UD was normally considered appropriate. 

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  The regulation, in effect at the time, established standardized policy for preparing and distributing the 
DD Form 214 and stated a Soldier’s education level and area of emphasis would be entered in Remarks, item 30.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the policies and procedures for enlisted personnel separations.  Chapter 3 outlines the criteria for characterization of service.  

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 states 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.  There is not now nor has there ever been any provision in law or regulation that allowed for an automatic upgrade of a discharge.

2.  Item 30 of his DD Form 214 does contain the entry "10 years - General"; however, it does not reference a future upgrade entitlement.  It most likely identifies his education level and emphasizes his area of study.

3.  The applicant did not complete AIT, he had more lost time than creditable service, and the service that he did complete was not so meritorious that it 
outweighed his repeated periods of AWOL. 

4.  The applicant's discharge proceedings were conducted in accordance with laws and regulations applicable at the time.  The character of his discharge is commensurate with the applicant's overall record of military service.

5.  The applicant has not provided any evidence and his records do not contain sufficient evidence to mitigate the seriousness of the offenses that resulted in his discharge action.  Therefore, there is an insufficient basis for upgrading 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)                                         AR20120021988



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ABCMR Record of Proceedings (cont)                                         AR20120021988



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