IN THE CASE OF: BOARD DATE: 10 December 2015 DOCKET NUMBER: AR20150004915 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 general discharge be upgraded to honorable. 2. The applicant states: a. He enlisted in the Army to serve his country and to learn how to be a heavy equipment operator. b. He completed basic training and was expecting orders to go to Fort Leonard Wood, Missouri, for advanced individual training (AIT). Instead, he received orders to Fort Belvoir, Virginia, to become a small engine mechanic. This was not the military occupational specialty (MOS) identified in his enlistment contract. c. He reported to Fort Belvoir and tried to explain his dilemma to his superiors but it fell on deaf ears no matter how many times he tried to correct the situation. He became extremely distraught and felt the Army was not fulfilling their end of the contract. d. He made the wrong decision in leaving the base without authorization. He realizes now that this was a rash decision made in large part due to the trauma he had already suffered as a child. e. He did attempt to correct the misunderstanding, but when that failed, the mental condition he suffered from caused him to withdraw and avoid the issue. f. He believes both he and the Army are equally at fault for his being absent without leave (AWOL). He did want to serve his country and signed a contract to perform a specific skill. He did complete basic training and truly believes he would have had a successful career had he been given the schooling he was promised. 3. The applicant provides a letter from the New Mexico Department of Veterans Affairs Healthcare System to the U. S. Department of Veterans Affairs (VA) Regional Office and a copy of his DD Form 214 (Report of Separation from Active Duty). 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 enlisted in the Regular Army on 10 May 1967. 3. A DD Form 4 (Enlistment Record – Armed Forces of the United States) shows his initial assignment was to be "ACGP 62 Engineer Heavy Equipment Operations and Maintenance." In addition, he signed an addendum to his enlistment contract, USAFRD Form 65 (Statement of Understanding of Enlistment Promises), that states ?my choice of initial assignment shown in item 13, or 37 of the DD Form 4 does not constituted any guarantee that my entire enlistment, will be served in that initial assignment. That military necessity may make it necessary to effect my reassignment at any time to any other assignment within the continental United States or an overseas command.? 4. His DA Form 20 (Enlisted Qualification Record) shows that following graduation from basic training, he was assigned to Fort Belvoir, Virginia, for AIT on 15 July 1967. He then had a history of short periods of AWOL and was dropped from the rolls on 27 October 1967. 5. He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 5 June 1967, for being AWOL on 4 June 1967, and on 8 May 1968, for breaking restriction. 6. On 6 February 1968, he was convicted by a summary court-martial in accordance with his plea of being AWOL from 26 October 1967 to 3 January 1968. 7. On 16 April 1968, the applicant was evaluated by a psychiatrist at the Fort Gordon, Georgia Mental Hygiene Clinic. The evaluation was requested by his company commander who was in the process of initiating a separation action. The psychiatrist stated the applicant had an immature personality that was chronic to severe manifested by inadequate motivation. The applicant had a history of hallucinogenic drug use. He had poor social adaption, was unreliable, and was impaired for further military duty. The psychiatrist concluded the applicant’s mental health conditions existed prior to service and strongly recommended administrative separation and denial of a security clearance. 8. On 20 May 1968, the applicant’s immediate commander notified him of his intent to initiate the applicant's separation under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for unfitness – frequent involvement in incidents of a discreditable nature with civil or military authorities. The commander stated the discharge was recommended because of the applicant's four incidents of AWOL and summary court-martial conviction. He recommended the applicant receive an undesirable discharge. 9. The applicant consulted with counsel and he waived consideration of his case by a board of officers, waived representation by counsel, and elected not to submit a statement in his own behalf. He acknowledged he could expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and that he could be ineligible for benefits as a veteran under both Federal and State laws. 10. The brigade commander recommended approval of the discharge recommendation. 11. On 6 July 1968, the separation authority approved the applicant's discharge and directed the applicant be furnished an Undesirable Discharge Certificate. 12. On 12 July 1968, the applicant was discharged under other than honorable conditions (UOTHC) and was issued an Undesirable Discharge Certificate. He had completed 9 months of active service with 154 days of time lost. He did not complete training and was not awarded a military occupational specialty. 13. On 18 July 1977, the Army Discharge Review Board upgraded his discharge to under honorable conditions (general) under the DoD Discharge Review Program (Special) (DoD SDRP). In its decision, the Board noted the applicant met the secondary criteria for review due to the possibility that personal problems may have contributed to his acts of misconduct which led to his discharge. In a spirit of compassion, the Board upgraded his discharge based on his extenuating circumstances. The applicant’s initial DD Form 214 was voided and a new DD Form 214 was issued to him under the provisions of the DOD SDRP. 14. Army Regulation 635-212 provided that an individual was subject to separation for unfitness when one or more of six conditions existed. These included frequent incidents of a discreditable nature with civil or military authorities. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 15. Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals. One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted. For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform. If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge. The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA. 16. A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension). This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) records free of any compelling reason to deny relief. This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals. Whether the individuals had performed alternate service was not an issue to be considered. 17. The Department of the Army SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program." It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case. An individual who had received a punitive discharge was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused therefrom in accordance with PP 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law. 18. Public Law 95-126 provided in pertinent part for a "Relook Program." All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards. Two of the principal features of Public Law 95-126 were: (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits. Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures. 19. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7a, provides that 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his discharge should be upgraded to honorable because the Army failed to provide him the training that he contracted for causing him to become extremely distraught. He feels the Army did not fulfill their end of the contract. 2. The applicant did not provide any evidence to substantiate his assertion that the Army did not fulfill their end of his contract as pertains to his training or assignment to Fort Belvoir. He signed an enlistment contract addendum that explicitly stated the needs of the military may necessitate his reassignment at any time to any other assignment. Army personnel were in compliance with his signed contract and its addendum based on the principle of military necessity. 3. The applicant did not complete his advanced individual training due to his history of AWOL and his inability to adapt to the military based on his immature personality. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of this case. In a spirit of compassion, the SDRP upgraded his discharge to general, under honorable conditions. 4. In view of the above, his request should be denied. 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) AR20100012492 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004915 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1