IN THE CASE OF:	  

		BOARD DATE:	    12 September 2013

		DOCKET NUMBER:  AR20130001492 


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 to a general discharge.

2.  He states he experienced serious stressors during his military service that resulted in his suffering for years with post-traumatic stress disorder (PTSD).  He states his discharge should be upgraded as a matter of fairness.  He has lived for 43 years with the stigma of an undesirable discharge.

3.  He provides no additional evidence.

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 3 April 1967, the applicant enlisted in the Regular Army for a period of 3 years.  He did not complete initial entry training.

3.  On 8 June 1967, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 29 April to 20 May 1967.

4.  Headquarters Battalion, U.S. Army Artillery and Missile Center, Fort Sill, OK, issued the following orders pertaining to the applicant:

	a.  Special Court-Martial Order Number 960, dated 27 October 1967, shows he pleaded guilty and was found guilty of two specifications of being AWOL from 2 to 13 July 1967 and from 16 July to 20 September 1967.  He was sentenced to confinement at hard labor for 3 months and forfeiture of $64.00 pay per month for 3 months.  On 21 November 1967, the unexecuted portion of his sentence to confinement was suspended for 3 months.  On 5 March 1968, the suspension was vacated and the unexecuted portion of the sentence to confinement was ordered executed.

	b.  Special Court-Martial Order Number 377, dated 21 March 1968, shows he pleaded guilty and was found guilty of one specification of being AWOL from 26 November 1967 to 16 February 1968.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $68.00 pay per month for 6 months.  On 27 March 1968, the unexecuted portion of his sentence to confinement was suspended for 6 months.

	c.  Special Court-Martial Order Number 413, dated 27 March 1968, again suspended the portion of the sentence to confinement promulgated in Special Court-Martial Order Number 960 for 3 months.

	d.  Special Court-Martial Order Number 929, dated 8 August 1968, vacated the suspension of the portion of the sentence to confinement promulgated in Special Court-Martial Order Number 377.

5.  On 13 August 1968, he accepted NJP for being AWOL from 29 March to 3 July 1968.

6.  Headquarters Battalion, U.S. Army Artillery and Missile Center, Fort Sill, OK, also issued the following orders pertaining to the applicant:

	a.  Special Court-Martial Order Number 1074, dated 10 September 1968, again suspended the portion of the sentence to confinement promulgated in Special Court-Martial Order Number 377 for 6 months.  Special Court-Martial Order Number 1353, dated 2 December 1968, again vacated the suspension of sentence.

	b.  Special Court-Martial Order Number 1435, dated 18 December 1968, shows he pleaded guilty and was found guilty of one specification of being AWOL from 17 September to 17 November 1968.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $50.00 pay per month for 6 months.

7.  On 14 December 1968, an Army psychiatrist issued a psychiatric evaluation based on a request from the applicant's commander.  The psychiatrist noted the applicant's history of being AWOL.  He reported that the applicant admitted that if he did not get out of the Army under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), he would "continue to run" until he was discharged.  The psychiatrist found no disease and found him to be mentally responsible.  The psychiatrist recommended the applicant's separation under the provisions of Army Regulation 635-212.

8.  On 14 January 1969, the Fort Sill Post Stockade Chaplain submitted a statement recommending the applicant's discharge.  He stated the applicant had no intention of soldiering and had not finished basic combat training for this reason.  The chaplain stated it appeared that further efforts to rehabilitate the applicant would be in vain.

9.  On 29 January 1969, his commander counseled him concerning a pending board action for reasons of unfitness under the provisions of Army Regulation 635-212.  He stated he had informed the applicant of the effects the action could have on his civilian life, that he could expect to encounter substantial prejudice, and that he could be ineligible for many or all veterans' benefits.  The commander stated that, after these factors were explained to the applicant, the applicant's only comment was, "When do I sign my waivers?"  His commander stated he felt further efforts toward rehabilitation would be in vain.

10.  On 2 February 1969, his commander informed him of the proposed action to effect his separation for unfitness under the provisions of Army Regulation 
635-212.  His commander informed him that the action was based on his three convictions by special court-martial, approximately 303 days of bad time due to being AWOL and in confinement, his lack of self-motivation, and his negative attitude toward the military.

11.  On 4 February 1969, he was advised by counsel of the basis for his contemplated separation, its effects, and the rights available to him.

12.  After consulting with counsel, he waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He elected not to submit statements in his own behalf and he waived representation by counsel.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were to be issued to him.  He further acknowledged he understood that as the result of issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

13.  On 14 February 1969, his commander recommended his discharge for unfitness under the provisions of Army Regulation 635-212, paragraph 6a(4) (an established pattern for shirking), for the reasons stated above and recommended the issuance of an undesirable discharge.

14.  On 5 March 1969, the separation authority approved his discharge as recommended and directed the issuance of an Undesirable Discharge Certificate.  On 18 March 1969, he was discharged as directed with his service characterized as under conditions other than honorable.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  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 evidence of record does not support the applicant's request for an upgrade of his undesirable discharge to a general discharge.

2.  The passage of time is not, in and of itself, a basis for changing a properly-issued discharge.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  He received NJP for being AWOL on two occasions, and he was convicted by special court-martial on three occasions for the same offenses.  In an interview with a psychiatrist, he stated his goal was to obtain a discharge under the provisions of Army Regulation 635-212 and he stated he would "continue to run" until he was discharged.  Clearly, his commander was justified in recommending his discharge for unfitness for an established pattern of shirking.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  The applicant's claim that he "experienced serious stressors during his military service" and that he has had PTSD for many years is noted.  With regard to upgrading his discharge, this claim lacks merit.  There is no documentary evidence showing he had a stress-related mental condition that should have been considered as a mitigating factor in his discharge processing.  In fact, a psychiatric examination conducted prior to his discharge found no evidence of any mental or emotional disorder.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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)                                         AR20130001492



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ABCMR Record of Proceedings (cont)                                         AR20130001492



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