IN THE CASE OF:	   

		BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130000884 


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 discharge under other than honorable conditions.

2.  He states he wishes to have his discharge upgraded before he dies.  He is in bad health and has a bad heart.  He was absent without leave (AWOL) and feels he should be able to have his discharge upgraded.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim).

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 14 September 1962, the applicant enlisted in the Regular Army for a period of 3 years.

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:

* abandoning a rifle on his sleeping cot on 4 March 1963
* being AWOL on 1 September 1963
* being AWOL on 12 January 1964
* being AWOL from 3 to 8 December 1964

4.  On 10 March 1965, an Army psychiatrist evaluated the applicant and diagnosed him with "inadequate personality, chronic, severe, manifested by grossly inadequate physical emotional and intellectual responsiveness to environmental demands, by emotional immaturity with impulsive behavior, by dull normal intelligence, and by impaired judgment and insight."  The psychiatrist noted his conditions existed prior to service and noted no disqualifying mental defect sufficient to warrant disposition through medical channels.  He found the applicant was mentally responsible, both to distinguish right from wrong and to adhere to the right.  He found he had the mental capacity to understand and participate in board proceedings and cleared him for administrative separation.  The psychiatrist stated that the applicant's separation with a general discharge was considered to be the most appropriate course of action.

5.  On 10 March 1965, Headquarters, Special Troops, Fort Campbell, KY, issued Special Court-Martial Order Number 116.

	a.  The applicant was charged with:

* being AWOL from 21 to 29 December 1964, 4 to 7 January 1965, and 9 to 13 February 1965
* escaping from lawful confinement on 9 February 1965

	b.  He pleaded guilty and was found guilty of the specifications and charges.  He was sentenced to confinement at hard labor for 4 months, forfeiture of $75.00 pay per month for 4 months, and reduction to private/E-1.  The sentence was approved and ordered executed except that portion pertaining to confinement at hard labor which was suspended for 4 months, at which time the suspended portion was to be remitted unless the suspension was sooner vacated.

6.  On 8 April 1965, Headquarters, Special Troops, Fort Campbell, KY, issued Special Court-Martial Order Number 158 vacating the suspension of the unexecuted portion of his sentence to hard labor.

7.  A DD Form 458 (Charge Sheet), dated 12 April 1965, shows he was charged with being AWOL from 3 to 8 April 1965.

8.  On 20 April 1965, he acknowledged he had been counseled and advised of the basis for a recommendation to discharge him under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  He declined counsel, did not request a hearing by a board of officers, and elected not to submit a statement in his own behalf.  He acknowledged he had been advised that if an undesirable discharge were issued to him, the discharge would be under conditions other than honorable and he could be deprived of many or all rights as a veteran under Federal and State laws and could expect to encounter substantial prejudice in civilian life as a result of such a discharge.

9.  On 20 April 1965, his commander recommended the applicant's discharge under the provisions of Army Regulation 635-208 and his receipt of an undesirable discharge.  His commander stated the applicant's expeditious separation was required based on having been AWOL on five occasions and having escaped from lawful confinement.  The commander stated the applicant declared that he intended to be AWOL if not discharged.

10.  On 21 April 1965, the separation authority approved his discharge under the provisions of Army Regulation 635-208 and directed the issuance of an Undesirable Discharge Certificate.  On 27 April 1965, he was discharged accordingly with his service characterized as under other than honorable conditions.  His DD Form 214 shows he completed 2 years, 4 months, and 2 days of total active service with 102 days of lost time.

11.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness.  The regulation stated that individuals would be discharged by reason of unfitness with an undesirable discharge (unless the particular circumstances in a given case warranted a general or honorable discharge) when it had been determined that an individual's military record was characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority 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.  He contends that his discharge should be upgraded because he is in bad health.  However, the ABCMR does not grant requests to upgrade discharges solely for the purpose of making an individual eligible for medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.

3.  His records show he received nonjudicial punishment for being AWOL and abandoning his weapon.  He was convicted by a special court-martial for being AWOL and escaping lawful confinement.  The suspension of a portion of his court-martial sentence was vacated, presumably because he was AWOL again.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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)                                         AR20130000884



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ABCMR Record of Proceedings (cont)                                         AR20130000884



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