IN THE CASE OF:	  

		BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20130016490 


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 his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he was "court-martialed with the use of unconstitutional criminal charges that were dismissed with prejudice."  He was held unconstitutionally in the Sussex County Correctional Center for 9 months and 
2 days without any probable cause to arrest or detain him.  This tainted information was used to destroy his military career.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 8 April 1969
* a handwritten document showing he was indicted for burglary in the fourth degree in the State of Delaware 

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 1 September 1966, he was inducted into the Army of the United States.  He completed basic training; however, he did not complete advanced individual training.  

3.  On 17 January 1967, he went absent without leave (AWOL).  He was apprehended by civil authorities and returned to military control on 23 May 1967.

4.  On 15 June 1967, he was tried before a special court-martial and was found guilty of being AWOL from on or about 17 January 1967 to on or about 23 May 1967.  

5.  On 1 July 1967, he went AWOL a second time.  He was apprehended by the Delaware State Police on 15 March 1968 and detained in the Sussex Correctional Institution, Georgetown, DE pending trial for the civil charge of burglary.

6.  On 13 December 1968, the civil charge against the applicant was dismissed due to lack of evidence and the case was closed.  He was released to military authorities on 16 December 1968.

7.  On 20 January 1969, he was tried before a special court-martial.  He pled guilty and was found guilty of being AWOL from on or about 1 July 1967 until on or about 15 March 1968.  His sentence consisted of 6 months confinement and a forfeiture of $73.00 pay for 6 months.  No previous convictions were considered.  The convening authority approved the sentence on 24 January 1969.

8.  On 17 March 1969, the applicant received a psychiatric evaluation by the Chief of Psychiatry, Irwin Army Hospital, Fort Riley, KS.  The examiner diagnosed him with "immature personality, chronic, moderate, manifested by poor judgment, resentment of authority, impulsive, maladaptive behavior."

	a.  The applicant was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.



	b.  The examiner found no disqualifying mental defects sufficient to warrant disposition through medical channels.

9.  On 26 March 1969, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action to discharge him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.  The applicant:

* waived consideration by a board of officers 
* waived a personal appearance  
* stated that he was not submitting statements in his own behalf 
* waived representation by counsel   

10.  He acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.

11.  On 26 March 1969, the applicant's commander recommended that the applicant be discharged from the military under the provisions of Army Regulation 635-212.  The applicant had displayed a definite pattern that he would not conform to military standards and discipline.  The commander stated:

	a.  Numerous and continuous rehabilitative efforts had been made through counseling and had been met with negative results.  The applicant was essentially a passive recipient of motivational stimulation who displayed little or no adaptive capacity to cope with the rigors of military life.

	b.  The applicant was a chronic dependent on "palm readers" and had stated that he felt he would go AWOL to see a "palm reader" if the need arose.

	c.  Based on his performance, cultural background, and the psychiatric evaluation this Soldier could not be rehabilitated to the extent that he could become an effective Soldier.

12.  On 26 March 1969, the appropriate authority accepted his waiver of a hearing before a board of officers, approved the recommendation for discharge under the provisions of Army Regulation 635-212, and directed the applicant be furnished an Undesirable Discharge Certificate.


13.  On 8 April 1969, he was discharged by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities under the provisions of Army Regulation 635-212 and issued an Undesirable Discharge Certificate.  He completed 4 months and 16 days of creditable service that was characterized as under conditions other than honorable.  He had 
584 days of time lost.  He had 218 days of time lost subsequent to his normal expiration of term of service date.

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

15.  Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  This regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  He contends he was court-martialed based on unconstitutional criminal charges that were dismissed and that he was unconstitutionally held in the Sussex County Correctional Center for 9 months and 2 days.

2.  On 20 January 1969, a special court-martial convicted him of being AWOL from 1 July 1967 to 15 March 1968, the day he was apprehended by civil authorities.  There was no charge of burglary and he was not charged with being AWOL for the period he was incarcerated by Sussex County, DE.

3.  Whether the applicant's incarceration in the Sussex County Correctional Center, DE or the civil charges against him were constitutional is not a matter within the purview of the ABCMR.

4.  He contends the tainted information was used to destroy his military career.  However, his commander's request to discharge him does not mention his civil charges or his civil confinement.  The fact that he had two long periods of AWOL, 126 days and 254 days, and that he was apprehended at the end of both periods was sufficient to process him for discharge for unfitness.  Therefore, his military career was destroyed by his own actions without regard to the civil matters.

5.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, the type of discharge and the reason for separation were appropriate considering all the facts of the case.

6.  He had 584 days of lost time.  He was apprehended by civil authorities during both of his periods of AWOL, thereby raising the question as to his intent to return to military authorities.  Therefore, his service is considered unsatisfactory and there is no basis upon which to upgrade his undesirable discharge to either an honorable or 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 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)                                         AR20130016490



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ABCMR Record of Proceedings (cont)                                         AR20130016490



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