BOARD DATE:	  4 November 2014

		DOCKET NUMBER:  AR20140004628 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states his induction into the Army was ultimately the wrong time in his life and set him up for failure.  He goes on to state that he desires to receive Department of Veterans Affairs (VA) health care and for his family to be proud. 

3.  The applicant provides a two-page letter explaining his application, copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), court-martial orders, and three third-party letters of support.

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 10 May 1966 and was transferred to Fort Riley, KS to undergo his basic training.

3.  On 6 April 1967, he was convicted by a special court-martial of being absent without leave (AWOL) from 7 September to 3 December 1966 and 20 December 1966 to 16 February 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay for 6 months.

4.  On 23 June 1967, he was convicted by a special court-martial of being AWOL from 11 April to 25 April 1967 and attempting to escape from lawful custody.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay for 6 months.

5.  On 2 August 1967, the applicant’s commander initiated action to discharge the applicant from the service for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  He cited the applicant’s repeated AWOL offenses, his negative indifferent attitude towards the Army, and the applicant’s statement that he would go AWOL if returned to duty as the basis for his recommendation.  The commander also indicated that the applicant stated that he did not have any specific reason for going AWOL.  He also stated he did not owe his country anything and he would accept any type of discharge to get out of the Army.  After consulting with defense counsel, the applicant waived all of his rights and declined the opportunity to submit a statement in his own behalf.

6.  The appropriate authority (a major general) approved the recommendation for discharge and directed the applicant be furnished an Undesirable Discharge Certificate.

7.  Accordingly, he was discharged on 22 September 1967 under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with military and civilian authorities and issued an undesirable discharge certificate.  He had served 3 months and 21 days of total active service and had 328 days of time lost due to AWOL and confinement.  He was also still in a trainee status.

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

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, that when separation for unfitness was warranted, an honorable or general discharge could be issued; however, an undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief when considering his repeated periods of AWOL, the lack of mitigating circumstances, and his undistinguished record of service during a short period of time.
  
4.  Accordingly, there appears to be no basis for granting the applicant's requested relief.

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)                                         AR20140004628





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ABCMR Record of Proceedings (cont)                                         AR20140004628



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