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		IN THE CASE OF:	  

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140013052 


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 request his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states:

   a.  twice he was sent to one location while his paperwork was sent in another direction and lost, all the while he went unpaid for 18 months;
   
   b.  he completed some initial entry training, earned the Sharpshooters Marksmanship Qualification Badge, and acted as an honorable Soldier during his entire military service;
   
   c.  he was married with children, drafted into the military, and finally discharged with an undesirable characterization of service for circumstances beyond his control; and
   
   d.  he believes he did nothing to receive an UD and that it should be changed to an HD.
   
3.  The applicant provides no additional 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 into the Army on 13 June 1968.  He completed basic combat training at Fort Polk, Louisiana.

3.  His DA Form 20 (Enlisted Qualification Record) shows he first departed absent without leave (AWOL) during advanced individual training from 16 to 19 September 1968.  Item 44 (Time Lost Under Section 972, Title 10, USC), also shows he accrued approximately 389 days of lost time for being AWOL, dropped from the rolls, or due to confinement.

4.  On 24 October 1968, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL from 30 September through 12 October 1968.

5.  A DD Form 493 (Extract of Military Records of Previous Conviction) shows he was twice convicted by special court-martial (SPCM) for being AWOL during the periods as indicated in the listed orders:

* SPCM Order Number (#) 595, dated 22 May 1969 from 4 December 1968 to 14 April 1969)

* SPCM Order #30, dated 12 January 1970 from 3 September to 7 December 1969

6.  On 30 January 1970, the applicant underwent a psychiatric evaluation which revealed:

* a well-oriented male with intact memory for recent, remote, and immediately past events
* his judgment was intact in terms of simple actual situations and there was no evidence of thought disorder, delusions, or hallucinations
* his affect was stable and appropriate
* he was diagnosed with "sociopathic personality" 
* he was mentally responsible both to distinguish right from wrong and adhere to the right
* he had the mental capacity to understand and participate in separation proceedings
* he had no disqualifying mental or physical disease or defect to warrant discharge through medical channels
* he was psychiatrically cleared for any administrative or disciplinary action

7.  On 7 February 1970, the applicant's unit commander recommended him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness.  He cited the applicant’s two SPCM convictions, approximate 356 days of bad time, chronic violation of Article 86 (AWOL) of the UCMJ, his dislike for military service, and his lack of self motivation and negative attitude toward military service as the basis for the elimination action.

8.  On 9 February 1970, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and to representation by counsel.  He further elected not to make a statement in his own behalf.

9.  On 19 February 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness and directed the applicant receive a UD.  On 24 February 1970, the applicant was discharged accordingly.  

10.  The DD Form 214 he was issued at the time confirms he completed a total of 7 months and 7 days of creditable active military service and that he accrued 390 days of time lost due to being AWOL and/or in confinement.  He authenticated this document with his signature.

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


12.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an HD or general discharge (GD) if warranted by the member's overall record of service; however, a UD was normally considered appropriate for members separating under these provisions.

13.  Army Regulation 635-200 (Enlisted Personnel Separations), paragraph 3-7a, provides that an HD 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.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 HD.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded to an HD because his papers were twice lost during his tenure on active duty and he did not receive pay for 18 months.  There is no evidence on file to support this claim.

2.  The evidence of record confirms that only after the applicant's repeated AWOL offenses, which resulted in one record of NJP and two SPCM convictions, did his unit commander initiate separation action against him.  He was properly advised by his commander and afforded the opportunity to consult with counsel and to be advised of his rights in connection with the separation action prior to completing an election of his rights.  

3.  The record further shows that after being counseled on his rights, the applicant voluntarily elected to waive his right to consideration of his case by a board of officers.  As a result, it is clear his separation processing was accomplished in accordance with the applicable regulation.  

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, it is clear his UD accurately reflects the overall quality of his service.  It is also clear his record did not support the issuance of an HD or GD by the separation authority at the time of his discharge and does not support an upgrade of his discharge now.


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)                                         AR20140013052



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ABCMR Record of Proceedings (cont)                                         AR20140013052



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