IN THE CASE OF:	  

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130011129 


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 upgrade of his discharge.

2.  The applicant states the commanding general came to see him regarding his request for a congressional investigation.  He was given a choice of immediately accepting an undesirable discharge (UD) or waiting a month or so for a general discharge.  He feared for his safety because of mistreatment by stockade staff so he chose the UD.  He also states:

* His moral and political beliefs did not support the Vietnam war and his confinement in the stockade was punishment for his beliefs.  He still suffers the stigma of the discharge for standing up for his beliefs although time has demonstrated that the Vietnam war was unsustainable and morally indefensible
* He injured both shoulders in basic training and he still suffers from the injury and the effect of the required pain medication.
* A county veterans service representative believes he may be suffering from post traumatic stress disorder
* His UD has a very negative social impact
* He has a beautiful family, has committed no crimes, does not use drugs or alcohol and has been elected to the city council 

3.  The applicant provides no supporting documents.




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 was inducted on 23 June 1966 and completed training as a supply clerk and was stationed at Fort Ord, California.

3.  He was convicted by Special Court-Martial in December 1966 for 23 days absence without leave (AWOL) and in December 1967 for 220 days AWOL.

4.  When the applicant was informed of contemplated separation for unfitness he consulted with counsel and waived his rights to have his case considered by a board of officers, to submit statements in his own behalf and to be represented by counsel.  He also indicated he understood he could expect to encounter substantial prejudice in civilian life and that he might be ineligible for veterans' benefits under Federal and State laws

5.  The company commander recommended separation with a UD for an established pattern of shirking by repeated AWOLs.

6.  On 25 January 1968 a psychiatric evaluation the psychiatrist noted that, "His stated reason for AWOL was orders for Viet Nam which he claims was not in accordance with his moral obligations, yet he has given little indication of particular concern about moral obligations in any other area."  The applicant's behavior was found to be normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.   There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.  He was able to understand and participate in proceedings.  

7.  The chain of command recommended approval of the UD and the separation authority so directed.

8.  On 22 February 1968 the applicant was separated with a UD for an established pattern of shirking under the provisions of Army regulations 635-212.  In approximately 1 year and 8 months of affiliation he had 7 months and 9 days of creditable service and 382 days lost time due to AWOL and confinement.

9.  On 21 July the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

10.  Army Regulation 635-212, (Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of an established pattern of shirking.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 

11. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently sets forth the basic authority for the separation of enlisted personnel:

	a.  Paragraph 3-7a states 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 states 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 states the commanding general came to see him regarding his request for a congressional investigation.  He was given a choice of immediately accepting an undesirable discharge (UD) or waiting a month or so for a general discharge.  He feared for his safety because of mistreatment by stockade staff so he chose the UD.

2.  There is no available evidence that the applicant was in any danger while in confinement or that he was offered a choice between immediate release or a better discharge at a later date.  

3.  The applicant was advised of the effects of a discharge Under Other Than Honorable Conditions and that he might be deprived of many or all Army and VA benefits.  He declined assistance by counsel, waived his right to a hearing before a board of officers, and acknowledged that he understood the effects of a UD.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  The character of the discharge is commensurate with the applicant's overall record of military service.

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20130011129





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ABCMR Record of Proceedings (cont)                                         AR20130011129



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