RECORD OF PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:           December 16, 2003                  
	DOCKET NUMBER:   AR2003088747

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Yvonne J. Foskey		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. John N. Slone		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests in effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he was inducted into the Army even after he had lost three fingers during a prior civilian incarceration.  He states that while still in basic training, he went absent without leave (AWOL) because he could not adapt to military life.  He further states that he went AWOL on three separate occasions while in training and as a result he received a general court-martial (GCM), and ultimately received an UD.  He claims that given his physical limitations at the time of his induction, the fact that his discharge was not the result of a court-martial sentence, and given he never completed training and therefore should not be considered a deserter, he should have received a GD. 

3.  The applicant also states that he is sure he never would have been sent into combat because he was and still is a sole-surviving son.  He further states that he became gravely ill as a result of drinking polluted water, which has permanently affected his liver, and as a result was placed in quarantine at the Fort Dix New Jersey Hospital.  He concludes by stating that for the reasons he outlines, he believes his discharge unjust and would appreciate that an upgrade of his discharge be considered at this time.  

4.  The applicant provides the enclosed self-authored letter in support of his application.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting an upgrade to his 4 October 1968 UD.  The application submitted in this case is dated 1 April 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 15 March 1967, the applicant was inducted into the Regular Army.  During the induction processing, he was given an entrance physical examination.  The Report of Medical History (SF Form 89) he completed at the time contains an entry that indicates that he lost three fingers.  The Report of Medical Examination (SF Form 88), dated 15 March 1967, completed by the attending medical physician confirms this condition was evaluated, and the applicant was still found medically qualified for induction.  

4.  On 17 March 1967, a medical evaluation of the applicant’s finger loss was completed at the Orthopedics Clinic, Fort Jackson, South Carolina.  The consultation form confirms that subsequent to the examination, the attending physician again found him fit for duty.

5.  On 1 May 1967, the applicant while still in basic training departed AWOL from his unit.  He remained away for 30 days until returning to military control on 
30 May 1967.  Upon his return, he was reassigned to Fort Dix, New Jersey to complete basic training.

6.  On 17 June 1967, the applicant departed AWOL from his basic training unit at Fort Dix.  He remained away for 95 days, until returning to military control on 
18 September 1967.  

7.  On 17 October 1967, pursuant to his pleas, the applicant was found guilty of two specifications of AWOL, from on or about 1 May through on or about 30 May 1967 and from on or about 17 June through on or about 18 September 1967, by a special court-martial (SPCM).  The resultant sentence was a forfeiture of $64.00 per month for four months and four months of confinement at hard labor (suspended).  

8.  On 20 November 1967, the applicant again departed AWOL from his training unit.  He remained away for 88 days, until returning to military control on 
18 February 1968.  On 29 April 1968, pursuant to his pleas, he was found guilty of being AWOL, from on or about 20 November 1967 through on or about 
18 February 1968, by a SPCM.  The resultant sentence included a forfeiture of $37.00 per month for six months and confinement at hard labor for six months.

9.  On 2 June 1968, the applicant once more departed AWOL from his unit.  He remained away for 62 days, until returning to military control on 4 August 1968.  On 18 September 1968, pursuant to his pleas, he was found guilty of being AWOL from on or about 2 June 1968 through on or about 4 August 1968, by a SPCM.  The resultant sentence included a forfeiture of $73.00 per month for six months and confinement at hard labor for six months.

10.  On 23 August 1968, an evaluation of the applicant, who was a prisoner in military confinement at the time, was conducted at the Mental Hygiene Consultation Service, Fort Dix, to assist the commander in evaluating and planning for the applicant with respect to restoration to duty, rehabilitation, and administrative separation.  The evaluation indicated that the applicant expressed a poor motivation for return to duty and stated that he would continue to go AWOL until being discharged.  The final recommendation was that he be separated from service under appropriate administrative regulations.  

11.  On 4 September 1968, the applicant was notified by his unit commander that action was being initiated to separate him under the provisions of paragraph 6a, Army Regulation 635-212, for unfitness.  The applicant consulted with legal counsel, and after being advised of the basis of the contemplated separation action and the effects of an UD, he completed his election of rights.  He elected to waive consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement of rebuttal in his own behalf.

12.  On 13 September 1968, a psychiatric evaluation of the applicant was completed.  The attending psychiatrist found him mentally responsible and determined that he had the ability to distinguish right from wrong and to adhere to the right, and that he had the capacity to understand the nature of the proceedings against him, and to cooperate in his own defense.  The psychiatrist finally recommended that the applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.

13.  On 27 September 1968, the approving authority approved the applicant’s discharge and directed that he receive an UD.  On 4 October 1968, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant on the date of separation confirms that he completed a total of 5 months and 17 days of creditable active military service, and that he accrued a total of 399 days of lost time due to AWOL and confinement.

14.  On 12 March 1984, the Army Discharge Review Board (ADRB) reviewed the applicant’s case and determined that the characterization and reason for the applicant’s discharge were both proper and equitable, and it voted to deny his request for an upgrade to his discharge. 

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a (1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An UD discharge was normally considered appropriate.

16.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 
3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge was too harsh was carefully considered.  However, the evidence of record confirms that his separation processing was accomplished in accordance with the law and regulations applicable at the time.  Further, the character of the discharge is commensurate with the applicant’s overall undistinguished record of military service.

2.  The evidence further shows that the applicant, after consulting with legal counsel and being advised of the basis for the contemplated separation action and it effects, voluntarily elected to waive his right to have his case considered by a board of officers and choose not to submit a rebuttal statement in his own behalf.  Further, during a mental status evaluation conducted during the separation process, the applicant stated his intent to continue to go AWOL until he was finally discharged.  

3.  Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the Board concludes that an upgrade to his discharge is not warranted at this time. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement

5.  Records show the applicant exhausted his administrative remedies in this case when his case was reviewed by the ADRB on 12 March 1984.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 11 March 1987.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ___  GRANT RELIEF 

________  ________  ___  GRANT FORMAL HEARING

__SAC ___JS ___SLP  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		Samuel A. Crumpler
		  CHAIRPERSON

INDEX

CASE ID	AR2003088747	
SUFFIX		
RECON		
DATE BOARDED	2003/12/16	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1968/10/04	
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.