IN THE CASE OF:	  

		BOARD DATE:  14 January 2014

		DOCKET NUMBER:  AR20130006085 


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 under other than honorable conditions discharge.

2.  The applicant states the circumstances that led to his conduct were unfairly dismissed by his chain of command.  He contends that his chain of command denied him permission to go see his dying father prior to his death.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), effective 30 April 1969.

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 records show he was inducted into the Army of the United States on 10 August 1966.  He failed to complete his initial training; therefore, he was not awarded a military occupational specialty.

3.  Item 44 (Time Lost) of his DA Form 20 (Enlisted Qualification Record) shows the following periods of lost time:

* 3 January - 4 May 1967, absent without leave (AWOL)
* 5 May - 3 August 1967, confinement
* 5 August - 29 December 1967, AWOL
* 14 September 1968 - 9 January 1969, AWOL
* 10 - 13 January 1969, confinement
* 14 January -29 April 1969, confinement

4.  His DA Form 493 (Extract of Military Records of Previous Convictions), issued by the Special Processing Detachment, Headquarters Battalion, U.S. Field Artillery Center, Fort Sill, OK, certified on 17 March 1969, shows the applicant was convicted by special court-martial on three occasions for being AWOL for the following periods:

* 3 January - 5 May 1967
* 5 August - 29 December 1967
* 14 September 1968 - 10 January 1969

5.  On 24 February 1969, the applicant underwent a psychiatric evaluation.  The psychiatrist noted that the applicant denied any personal problems but stated that he could not adjust to the Army and would continue to go AWOL unless he was released from the Army.  The applicant was diagnosed with an emotionally unstable personality which existed prior to service.

6.  On 27 February 1969, his commander counseled the applicant in regards to his pending board action under the provisions of Army Regulation 635-212 (Personnel Separations – Unfitness and Unsuitability) for unfitness.  His commander noted that due to the applicant's dislike for military service, lack of self-motivation, and negative attitude toward the military, further efforts toward his rehabilitation would be in vain.

7.  On 17 March 1969, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 due to unfitness.  The commander cited the applicant's three special court-martial convictions, over 500 days of bad time due to AWOL and confinement, and his negative attitude toward the military.

8.  On 19 March 1969, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He also acknowledged 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 in the event an undesirable discharge was issued to him.  He waived consideration of his case by a board of officers, he waived a personal appearance before a board of officers, and he declined to make a statement in his own behalf.

9.  On 19 March 1969, his immediate commander formally initiated separation action against him under the provisions of Army Regulation 635-212 by reason of unfitness and he recommended the applicant receive an undesirable discharge.

10.  On 26 March 1969, the applicant's intermediate commander recommended approval of the applicant's discharge for unfitness and the issuance of an Undesirable Discharge Certificate.

11.  On 16 April 1969, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed that the applicant be furnished an Undesirable Discharge Certificate. 

12.  Accordingly, on 30 April 1969, the applicant was discharged from the Army.  The DD Form 214 he was issued confirms he completed a total of 1 year, 
1 month, and 3 days of creditable active military service and he had 588 days of lost time.

13.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction; an established pattern of shirking; and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

15.  Army Regulation 635-200 (Active Duty - Enlisted Administrative Separations) sets forth the basic policy 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.  The applicant requests that his undesirable discharge be upgraded.

2.  He failed to provide evidence and his record is void of any evidence showing that he was denied permission to go see his dying father.  In fact, the record shows that during his psychiatric examination he specifically indicated that he was not encountering any personal problems.  However, he did state during this evaluation that he would continue to go AWOL until he was separated from the Army.

3.  His records reveal a history of indiscipline and/or misconduct including three instances of court-martial and lost time totaling 588 days.  Accordingly, his chain of command initiated separation action against him.  The applicant's discharge was 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.  Further, his discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.

5.  In view of the above, his request should be denied.
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)                                         AR20130006085





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ABCMR Record of Proceedings (cont)                                         AR20130006085



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