IN THE CASE OF:	  

		BOARD DATE:	  19 February 2015

		DOCKET NUMBER:  AR20140008354 


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.

2.  He states, in effect, he has included evidence to support his claim.

3.  He provides:

* Department of Veterans Affairs (VA) Regional Office Administrative Decision, dated 23 July 1971
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 13 March 1967
* DD Form 214 for the period ending 19 May 1970
* DA Form 3349 (Medical Condition – Physical Profile Record), dated 6 March 1968
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 15 March 1968
* Standard Form 600 (Chronological Record of Medical Care)
* DA Form 20 (Enlisted Qualification Record) (pages 1 and 2)
* DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 25 March 1968
* DA Form 188 (Extract Copy of Morning Report), dated 1 December 1969
* Report of Psychiatric Evaluation, dated 17 December 1969
* Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) discharge proceedings


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 into the Army of the United States on 27 May 1965.  He served in Vietnam from on or about April 1966 to March 1967.  On 13 March 1967, he was released from active duty and was transferred to the U.S. Army Reserve Control Group (Annual Training).  He enlisted in the Regular Army on 10 May 1967 in pay grade E-3.  

3.  On 3 July 1967, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for two specifications of being absent from his appointed place of duty.

4.  His service record shows he was absent without leave (AWOL) from 2 April 1968 to 30 October 1969.  He was in pre-trial confinement from 1 November 1969 to 24 February 1970, during which time administrative separation under Army Regulation 635-200 (Personnel Separations) was initiated.  

5.  On 16 December 1969, he underwent a psychiatric evaluation and was diagnosed as having antisocial personality disorder, severe.  The psychiatrist recommended the applicant be eliminated under the provisions of Army Regulation 635-200 or Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  The applicant was cleared for any administrative decision deemed appropriate by command.  

6.  His service record also shows that he was AWOL from 3 to 7 March 1970.  

7.  On 18 March 1970, he consulted with counsel, waived a hearing by a board of officers, waived personal appearance before a board of officers, and declined to submit statements in his own behalf.

8.  On 20 April 1970, his company commander recommended separation for desertion.  The company commander recommended elimination action because the applicant displayed a definite pattern that he would not conform to military standards and discipline.  During his current enlistment he lost a total of 685 days.  Numerous attempts were made to rehabilitate the applicant and all attempts were met with failure.  

9.  On 29 April 1970, a colonel from the Judge Advocate General Corps stated that the applicant's file disclosed no reason why trial by court-martial should be waived or deemed inadvisable by the general court-martial convening authority.  There appeared to be competent evidence establishing unauthorized absences for the periods from 2 May 1968 to 31 October 1969, and from 3 to 7 March 1970.  The applicant's file was returned to Troop Command for documentation of reason for waiver of trial or appropriate action pursuant to the Manual for Courts-Martial.

10.  On 30 April 1970, his separation action was returned without action due to administrative errors.  

11.  The separation authority approved separation under the provisions of Army Regulation 635-206, paragraph 46b(1) for misconduct, directed issuance of an undesirable discharge, and reduction to the grade of private/E-1.

12.  He was discharged on 19 May 1970.  He completed 1 year, 5 months, and 2 days creditable service during the period under review and 1 year, 11 months, and 4 days prior service.  At the time of his discharge, he had approximately 685 days of lost time.  

13.  He provided an Administrative Decision, dated 23 July 1971, from the VA Regional Office, Pittsburg, PA which recommended that he be awarded all veterans' benefits and that his discharge be considered to have been under conditions other than dishonorable.  He reported that his lengthy AWOL had started because his wife was experiencing emotional problems and he had been denied leave to help her.  His AWOL continued because his wife was in a mental hospital and their children were placed in an orphanage.  An officer from the Judge Advocate General Corps had stated, in part, "The facts presented above corroborated by pretrial confinement at Fort Leonard Wood from 1 November 1969 to 16 February 1970 establish an undue delay in processing charges of desertion.  This delay would undoubtedly be considered denial of a speedy trial with dismissal of charges by the court.  Therefore, trial is inadvisable."

14.  On 29 April 1985, the Army Discharge Review Board, in a unanimous decision, denied the applicant's request for upgrade of his discharge.
15.  He applied to this Board in September 1990; however, it was determined that he had not demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time limits prescribed by Title 10, U.S. Code, Section 1552(b), and that it was not in the interest of justice to excuse his failure to timely file.

16.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 46 stated, in pertinent part, that the discharge of an individual by reason of desertion or AWOL may be ordered when the board hearing is waived by the individual.   

17.  Army Regulation 635-200 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 evidence of record shows the applicant departed his unit in an AWOL status on 2 April 1968, and he remained in an AWOL status until he returned to military control on 30 October 1969.  He was also AWOL from 3 to 7 March 1970.

2.  As required by the applicable regulation at the time, his chain of command initiated separation action against him and he was notified of his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.

3.  His actions at the time brought discredit upon himself and the Army.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His extended period of AWOL also renders his overall service unsatisfactory.
4.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20140008354





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ABCMR Record of Proceedings (cont)                                         AR20140008354



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