IN THE CASE OF:	  

		BOARD DATE:	  5 December 2013

		DOCKET NUMBER:  AR20130005547 


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 general under honorable conditions.

2.  The applicant states:

	a.  His court-martial and loss of rank should never have happened.  He brought back letters from the Red Cross, the family doctor, and the Sheppard Air Force Base Commander stating it was important for him to be with his mother due to her health problems.

	b.  He was exposed to Agent Orange while he was assigned to the 3d Battalion, 23d Infantry Regiment, 2d Infantry Division, in Korea.  His unit was recognized by the Department of Veterans Affairs as having been exposed to Agent Orange in 1968 and 1969.  It took the government 30 years to acknowledge the exposure.  He is suffering from heart, kidney, and other medical conditions due to this exposure.

	c.  He suffered from depression and post-traumatic stress disorder (PTSD) while serving in Panama.  He requested help, but he never received any.

	d.  He asked to be discharged at the time of his court-martial, but the sergeant major told him he couldn't get out as long as he held rank.  The rest of his absences without leave (AWOL) were intended to lose all his rank.

3.  The applicant 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.  The applicant's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

3.  The applicant enlisted in the Regular Army on 24 October 1967, completed training, and was awarded military occupational specialty 76Y (Unit and Organization Supply Specialist).  He was discharged on 12 February 1969 for the purpose of immediate reenlistment.  His DD Form 214 for this period shows he completed 10 months and 18 days of foreign and/or sea service and was awarded the Armed Forces Expeditionary Medal (Korea).

4.  He reenlisted for 6 years on 13 February 1969.

5.  The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on:

* 26 October 1970, for failing to report for guard duty
* 23 December 1970, for being AWOL from 2 through 20 December 1970 (19 days)

6.  The Commander's Statement, dated 24 February 1971, reports the applicant turned himself over to a chaplain under the Drug Amnesty Program on 6 January 1971 and enrolled in a drug treatment program.  On 15 January 1971, the commander approved the chaplain's request for emergency leave on behalf of the applicant.  The applicant did not properly sign out and was declared AWOL on or about 18 January 1971.  When the applicant's home of record was called, the applicant's father reported that the applicant had not arrived and he had not heard from him.

7.  The applicant returned to military control on 7 June 1971 and was placed in military confinement pending court-martial.

8.  On 21 June 1971, a special court-martial found the applicant guilty of AWOL from 19 January through 7 June 1971.  His punishment consisted of confinement for 5 months and forfeiture of $100.00 per month for 5 months.

9.  On 20 July 1971, the applicant's command initiated separation proceedings for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) with issuance of a UD.  The commander cited the applicant's special court-martial; 202 days of "bad time"; chronic violations of Article 86 (AWOL), UCMJ; lack of motivation toward self-improvement; and negative attitude.

10.  The applicant acknowledged the separation action and waived his rights to have his case considered by a board of officers, to appear in person, and to be represented by counsel.

11.  The court-martial convening authority approved a waiver of rehabilitation and directed the applicant's UD.

12.  The applicant was discharged under conditions other than honorable on 11 August 1971 and was issued a UD Certificate.  He completed 2 years, 2 months, and 15 days of total creditable service with 221 days of lost time due to AWOL and confinement.

13.  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 6 provided that an individual was subject to separation for unfitness for a number of reasons, including frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, a UD was normally considered appropriate.

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7b provides that a general discharge is a separation under honorable conditions issued to a Solider whose military record is satisfactory but not so meritorious as to warrant an honorable discharge.

15.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records do not contain and the applicant has not provided any evidence to show he was exposed to Agent Orange, that he sought medical assistance for depression, or that he developed PTSD as a result of his military service.

2.  The only documented medically-related issue is his voluntary request for drug treatment under the Drug Amnesty Program, a program he never completed due being AWOL.

3.  The applicant contends he should not have been court-martialed because his absence was authorized to attend to his mother's health and he had provided evidence of this fact.

4.  This contention is without merit in as much as the records show he was approved for emergency leave, but he never properly signed out and he never showed up at home.  He remained absent for almost 5 months before returning and being court-martialed.

5.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20130005547



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ABCMR Record of Proceedings (cont)                                         AR20130005547



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