IN THE CASE OF:	  

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130002627


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, through a Member of Congress, his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant summarizes his military history and states:

	a.  his record falsely shows he was absent without leave (AWOL) 573 days; and

	b.  his first sergeant (1SG) at Fort Riley, KS told him he needed to process out and go home.

3.  The applicant provides:

* Privacy Act Statement
* Letter from the Honorable Harold Rodgers, dated 10 January 2013
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued on 6 February 1968 and 14 August 1970
* Two self-authored statements
*  Multiple documents from his Army Military Human Resource Record (AMHRR) (previously known as the Official Military Personnel File)

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 initially was inducted into the Army on 6 July 1966.  He was trained in and awarded military occupational specialty 12B (Combat Engineer).

3.  On 6 February 1968, he was honorably discharged in the rank of specialist four/E-4, for the purpose of immediate enlistment in the Regular Army (RA).  His DD Form 214 shows he completed 1 year, 7 months, and 1 day of creditable active service of which 1 year, 1 month, and 24 days was foreign service completed in Germany.  On 7 February 1968, the applicant enlisted in the RA.  

4.  His DA Form 20 (Enlisted Qualification Record) shows he earned the National Defense Service Medal.  It also shows he was reported in an AWOL status on at least five separate occasions and he lost time due to confinement on two separate occasions.

5.  A DA Form 20B (Insert Sheet to the DA Form 20 - Record of Court-Martial Conviction) shows that on 9 May 1969 a special court-martial (SPCM) found the applicant guilty of being AWOL from on or about 1 November 1968 to 27 March 1969.  The resultant sentence was confinement at hard labor for 6 months, a forfeiture of $46.00 pay for 6 months, and reduction to private/E-1.

6.  On 18 June 1970, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for being AWOL from on or about 11 April through 3 June 1970.

7.  On 6 July 1970, the applicant's unit commander recommended him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness.  He cited the applicant’s offenses which resulted in over 500 days of bad time and that the applicant's psychiatric evaluation certificate showed no mental conditions warranting discharge through medical channels as the basis for the elimination action.


8.  On 14 July 1970, the applicant underwent a psychiatric examination which showed:

* his pre-military and military history revealed faulty judgment, non-commitment to productive goals, an incapacity to respond to rehabilitative efforts, resentment towards authority, and a tendency to go AWOL when stress arises
* he had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels and he did not manifest a psychosis or neurosis
* it was believed he would not adjust to military service and that further rehabilitative efforts would be nonproductive
* he 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

9.  On 20 July 1970, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and to representation by counsel.  He further elected not to make a statement in his own behalf.

10.  On 28 July 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness and directed the applicant receive a UD.  On 14 August 1970, the applicant was discharged accordingly.  

11.  The DD Form 214 he was issued at the time confirms he completed a total of 2 years, 8 months, and 16 days of creditable active military service and that he accrued 508 days of time lost (due to being AWOL and/or in confinement).  He authenticated this document with his signature.

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

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an HD or general discharge (GD) if warranting by the member's overall record of service; however, a UD was normally considered appropriate for members separating under these provisions.

14.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, provides that an HD 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.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 HD.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded to an HD because he did not depart AWOL for 573 days as his record shows and that he left the Army under the direction of his 1SG.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms that only after the applicant's repeated AWOL offenses and SPCM conviction did his unit commander initiate separation action against him.  He was properly advised by his commander and afforded the opportunity to consult with counsel and to be advised of his rights in connection with the separation action prior to completing an election of his rights.  

3.  There is no evidence to confirm the applicant's claim that his 1SG told him to leave the Army without any formal or official separation processing as required by regulation.  To the contrary, his final DD Form 214 confirms he was separated under the provisions Army Regulation 635-212 and he verified this information when he signed this document.

4.  The record further shows that after being counseled on his rights, the applicant voluntarily elected to waive his right to consideration of his case by a board of officers.  As a result, it is clear his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  While the applicant’s record confirms he was not reported in an AWOL status for 573 days as he claims it does documents his repeated AWOL offenses and he was punished by an SPCM conviction for one of these occurrences.  However, he continued to depart AWOL. Therefore, it is clear his UD accurately reflects the overall quality of his service.  It is also clear his record did not support the issuance of an HD or GD by the separation authority at the time of his discharge and does not support an upgrade of his discharge now.

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)                                         AR20090015521



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ABCMR Record of Proceedings (cont)                                         AR20130002627



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