BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160004145 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ _x_______ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160004145 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160004145 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 under other than honorable conditions discharge be upgraded to an honorable discharge. 2. The applicant states: a. He volunteered to go into the Army and to the Republic of Vietnam, but during his entrance physical, he was sent home due to his limited physical attributes. However, they needed troops so they called him back. b. During basic training, he was "picked-on" by his fellow Soldiers and called names. He was constantly abused and thus decided to go absent without leave (AWOL). He was on his way back and got into a car wreck that put him in a Department of Veterans Affairs (VA) hospital for months. His left arm, hand and back are still injured to this day. c. He could have been a good Soldier if he had been afforded the opportunity instead of being emotionally abused. Currently, he is not in good health. 3. The applicant provides hand written statements in support of his application. 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 3 June 1969. 3. Special Court-Martial Order Number 160, issued by Fifth Advanced Individual Training (AIT) Brigade, U.S. Army Training Center, Infantry, Fort Polk, LA, on 17 October 1969, shows the applicant was found guilty of violating Article 86 of the Uniform Code of Military Justice (UCMJ); specifically, he went AWOL from on or about 25 August through 10 September 1969. 4. The sentence was adjudged on 29 September 1969; his sentence consisted of confinement at hard labor for 3 months, a forfeiture of $76 pay for 3 months, and reduction to the lowest enlisted grade. The sentence was approved and ordered to be executed on 17 October 1969. 5. Special Court-Martial Order Number 612, issued by Headquarters, Special Troops, U.S. Army School/Training Center, Fort Gordon, GA, on 8 June 1970, shows the applicant was found guilty of violating Article 86 of the UCMJ; specifically, while a member of the Overseas Replacement Station, Oakland, CA, he went AWOL from on or about 3 February through 16 May 1970. 6. The sentence was adjudged on 11 June 1970; his sentence consisted of confinement at hard labor for four months and a forfeiture of $50 pay for 6 months. Only so much of the sentence as provided for a forfeiture of $50 pay for 4 months and confinement at hard labor for 4 months was approved. The sentence was ordered to be executed on 18 June 1970. 7. Special Court-Martial Order Number 102, issued by Headquarters Command, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, GA, on 8 February 1971, shows the applicant was found guilty of violating Article 86 of the UCMJ; specifically, while a member of the 524th Personnel Service Replacement Station, Fort Benning, GA, he went AWOL from on or about 14 September 1970 through 7 January 1971. 8. The sentence was adjudged on 1 February 1971; his sentence consisted of confinement at hard labor for 5 months and a forfeiture of $40 pay for 5 months. The sentence was approved and ordered to be executed on 8 February 1971. 9. The applicant underwent a psychiatric evaluation by a licensed psychiatrist on 23 February 1971, to determine his mental condition prior to the commencement of administrative separation actions. The medical professional that performed the evaluation stated the following: a. There is no evidence of any mental condition which would warrant consideration of treatment, hospitalization, or other disposition via medical channels. b. He was and is mentally responsible, able to distinguish right from wrong and to adhere to the right, and he has the mental capacity to understand and participate in administrative procedures deemed appropriate by the command. c. The findings were determined to be a personality inadequate to adjust to a military environment. His immaturity, nervousness and other symptoms of chronic anxiety, use of unauthorized drugs, and repeated infractions of military rules and regulations makes his rehabilitative potential poor. His poor impulse control with escape-type behavior by going AWOL when stress arises coupled with withdrawal from interpersonal relationships, impaired insight, and judgement lends to poor motivation for service. 10. The applicant's immediate commander notified him on 27 February 1971 of his intent to initiate separation actions against him in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness. His commander recommended he receive an undesirable discharge. 11. The applicant consulted with legal counsel on 1 March 1971, and was advised of the basis for the contemplated separation action, his right to present his case before a board of officers, to submit a statement in his own behalf, and to be represented by counsel. He elected to waive his rights. He also indicated he understood he might expect to encounter substantial prejudice in civilian life by reason of a general discharge under honorable conditions. He also acknowledged he understood he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life as a result of an undesirable discharge under conditions other than honorable. 12. On the same date, his immediate commander recommended that he be separated from the service under the provision of Army Regulation 635-212, by reason of unfitness, citing his conduct and disciplinary records and his three convictions by special courts-martial. 13. On 12 March 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 and directed the issuance of an Undesirable Discharge Certificate. 14. The applicant was discharged on 17 March 1971 under the provisions of Army Regulation 635-212 by reason of unfitness (frequent involvement in incidents of discreditable nature with civil or military authorities). His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he completed 6 months and 2 days of total active service. He accrued 468 days of lost time during his period of active service, he received an under other than honorable conditions characterization of service upon his discharge, and he was issued an Undesirable Discharge Certificate. 15. The applicant's available record does not contain evidence nor does he provide any evidence that shows he was physically or emotionally abused or sought treatment from medical authorities for any medical condition or accident during his period of active service. 16. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB reviewed his request on 28 March 1980, determined his discharge was both proper and equitable and denied his request for an upgrade. REFERENCES: 1. Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness. It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel. a. 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. b. 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: 1. The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered. 2. The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of Army personnel, as evidenced by his record of indiscipline that included three convictions by special courts-martial for being AWOL and his accumulation of 468 days of lost time. Accordingly, his chain of command recommended the applicant’s elimination from the Army. 3. His separation action 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 reason for separation were appropriate considering all the facts of the case. He has provided no information that would indicate the contrary or that his discharge or characterization of his service was in error or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004145 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004145 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2