IN THE CASE OF:	  

		BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120022432 


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 his undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states he was injured in basic training and he was unable to march to training and had to ride in a truck.  He was treated unfairly by the senior drill instructor (SDI).  Another DI wanted to recycle him and he got to the point that he just wanted out of the Army no matter what.  If not for his injury in training he would have made a good Soldier.  He was treated badly by the SDI and the other DI.  He was given a blanket party under their orders.  He lay in the bay for 2 days after that beating, hurt and uncared for.  He wanted no more of what they had to offer him.

3.  The applicant provides no additional evidence in support of 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.  On 13 September 1967, he was inducted into the Army of the United States.  On 20 September 1967, he reported to Fort Leonard Wood, MO for basic combat training.

3.  On 25 October 1967, he accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) 22 - 24 October 1967.

4.  On 9 February 1968, before a special court-martial, he pled guilty and he was found guilty of being AWOL from on or about 1 November 1967 to on or about 
17 January 1968.

	a.  His sentence consisted of confinement at hard labor for 6 months and forfeiture of $36.00 per month for 6 months.

	b.  The convening authority approved the sentence on 16 February 1968 but suspended the 6 months confinement until 8 August 1968.

5.  On 11 October 1968, the applicant received a psychiatric evaluation by the chief psychiatrist, Mental Hygiene Consultation Service, Camp Whitside, Fort Riley, KS.  

	a.  The examiner diagnosed him with a immature personality, chronic, moderate, manifested by poor judgment, resentment of authority, maladaptive behavior, impulsiveness, and much underlying hostility.

	b.  The examiner stated that it could be presumed that this longstanding character and behavior problem would tend to exist permanently.  He felt the applicant could not be rehabilitated to the extent that he could become an effective Soldier and he was a candidate for administrative separation.

6.  On 17 October 1968, before a special court-martial, he pled guilty and he was found guilty of being AWOL from on or about 26 February to on or about 30 July 1968.

	a.  His sentence consisted of confinement at hard labor for 6 months and forfeiture of $63.00 per month for 6 months.

	b.  The convening authority approved the sentence on 18 October 1968.

7.  On 23 January 1969, before a special court-martial, he pled guilty and he was found guilty of being AWOL from on or about 30 October to on or about 
26 December 1968.

	a.  His sentence consisted of confinement at hard labor for 6 months and forfeiture of $46.00 per month for 6 months.

	b.  The convening authority approved the sentence on 3 February but suspended the 6 months confinement for 6 months.

8.  On 19 May 1969, before a special court-martial, he pled guilty and he was found guilty of being AWOL from on or about 1 February to on or about 21 April 1969.

	a.  His sentence consisted of confinement at hard labor for 6 months and forfeiture of $73.00 per month for 6 months.

	b.  The convening authority approved the sentence on 3 June 1969.

9.  On 16 June 1969, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action to discharge him under the provisions of Army Regulation 635-212 for unfitness.  The applicant:

* waived consideration by a board of officers 
* waived a personal appearance  
* stated that he was not submitting statements in his own behalf 
* waived representation by counsel   

10.  He acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may 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.

11.  On 18 June 1969, he was examined by the Division psychiatrist at the Mental Hygiene Consultation Service, Fort Carson, CO.  The examiner diagnosed him with an emotionally unstable personality.  The examiner stated:  

	a.  The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  

	b.  There was no psychiatric condition present that would warrant separation through medical channels.

	c.  Based on the applicant's past performance in civilian as well as in military life, Command should not anticipate any significant improvement in his level of function or in his productivity and because of his character disorder, it is suggested that he be administratively separated from the Army according to the provisions of Army Regulation 635-212.

12.  On 7 July 1969, his commander recommended the applicant be discharged from the military service under the provisions of Army Regulation 635-212.  The applicant had displayed a definite pattern that he would not conform to military standards and discipline.  As of 7 July 1969 he had 580 days of time lost.  The commander stated:

	a.  The applicant had four special courts-martial for being AWOL, the last of which was at Fort Carson for being AWOL from the Special Processing Battalion at Fort Riley, KS where he was waiting for a discharge under the provisions of Army Regulation 635-212.

	b.  The applicant claimed he just couldn't stand to be around people and couldn't stand to take orders as evidenced by several civil convictions for auto theft, burglary, and armed robbery at the age of about 15 years.

	c.  He doubted the applicant would ever amount to anything either in the military or in civilian life.  Any further attempt at rehabilitation of him would not be effective.

13.  On 17 July 1969, the appropriate authority accepted his waiver of a hearing before a board of officers, approved the recommendation for discharge under the provisions of Army Regulation 635-212, and directed the applicant be furnished an Undesirable Discharge Certificate.

14.  On 29 July 1969, he was discharged for unfitness under the provisions of Army Regulation 635-212 and issued an Undesirable Discharge Certificate.  He completed 1 month and 26 days of creditable service that was characterized as under conditions other than honorable.  He had 631 days of time lost.

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

16.  Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  This regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

17.  Army Regulation 635-200, in effect at the time, provided for a general discharge under honorable conditions for an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  He contends he was injured in basic training and suffered abuse from the SDI and another DI.  At the time he was being processed for discharge these factors could have been considered; however, he waived his right for consideration of his case by a board of officers.  There is no evidence of record and he has not submitted any substantive evidence to support his contention.  Therefore, his contentions cannot be considered as mitigating factors in the determination of his case.

2.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, the type of discharge and the reason for separation were appropriate considering all the facts of the case.

3.  Although his DD Form 214 shows he had just over 2 years in the Army, he only had 1 month and 26 days of creditable service.  He was convicted by four special courts-martial for being AWOL and he had 631 days of time lost.  This clearly shows his service to be unsatisfactory.  Therefore, there is no basis to upgrade his discharge to a general discharge under honorable conditions.


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)                                         AR20120022432



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ABCMR Record of Proceedings (cont)                                         AR20120022432



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