IN THE CASE OF:	

		BOARD DATE:	11 September 2008  

		DOCKET NUMBER:  AR20080009615 


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 that his undesirable discharge be upgraded.

2.  The applicant states he was told that his discharge would be upgraded 
6 months from the date of his discharge.  He further states the date on an Honorable Discharge Certificate he received is incorrect.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 19 July 1972 and an Honorable Discharge Certificate.

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's military personnel record shows he enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 13 November 1970 with a delay from active duty until 30 November 1970.  

3.  On 30 November 1970 the applicant was discharged from the DEP and on
1 December 1970 he enlisted in the Regular Army for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 11C (Infantry Indirect Fire Crewman).

4.  On 24 June 1971, the applicant was assigned to Company B, 2nd Battalion (Airborne), 505th Infantry at Fort Bragg, North Carolina.

5.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 6 September, 6 October, and 
13 October 1971.  His offenses included being absent from his appointed place of duty, breaking restriction, and being absent without leave (AWOL) during the periods from 2 - 8 September 1971 and from 9 September to 4 October 1971.

6.  On 10 May 1972, the applicant pled guilty and was found guilty by a special court-martial of missing the movement of his unit through neglect.  His sentence consisted of a $50.00 fine, recommended by the court to be suspended for one month.  On 10 May 1972, the convening authority approved and suspended the sentence for 5 months, at which time, unless the suspension was sooner vacated, the sentence was to be remitted without further action.

7.  On 5 June 1972, the applicant was examined by a major in the Medical Corps at Womack Army Hospital at Fort Bragg, North Carolina.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible; able to distinguish right from wrong and adhere to the right; and had the mental capacity to understand and participate in board proceedings.

8.  On 8 June 1972, the applicant's commander notified him that he was being recommended for separation from the service for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability).  The commander advised the applicant of his right to present his case before a board of officers; submit any statement in his behalf; and to be represented by military counsel appointed by the convening authority, military counsel of his own choice provided the requested counsel is reasonably available, or civilian counsel at his own expense.

9.  The applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.   

10.  The applicant acknowledged that, as the result of issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.  

11.  On 20 June 1972, the applicant's commander recommended him for an undesirable discharge by reason of unfitness under the provisions of paragraph 6 of Army Regulation 635-212 for frequent incidents of a discreditable nature and an established pattern for shirking.  The commander further recommended a waiver of any reassignment or transfer as a rehabilitative attempt and that he should be furnished a General Discharge Certificate.

12.  On 10 July 1972, the appropriate authority waived rehabilitative transfer, directed the discharge of the applicant under the provisions of Army Regulation 635-212, and directed issuance of an Undesirable Discharge Certificate.

13.  On 19 July 1972, the applicant was discharged under the provisions of Army Regulation 635-212 by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had completed 1 year, 6 months, and 17 days of active service that was characterized as under conditions other than honorable.  He had 31 days of time lost.

14.  The applicant submitted a copy of an Honorable Discharge Certificate that reflects his name and that shows he was honorably discharged from the United States Army on 30 November 1970.

15.  There is no indication that the applicant's case was considered by the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statue of limitations.

16.  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.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was told it would be upgraded 6 months after he was discharged.

2.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.

3.  The discharge certificate submitted by the applicant was issued in error.  The applicant did not enlist in the Regular Army until 1 December 1970.  The applicant would have been discharged from the DEP on the day before he enlisted in the Regular Army, 30 November 1970.  Upon discharge from the DEP, Soldiers are not issued Honorable Discharge Certificates from the Regular Army.  It is the policy of this Board not to correct a record that would perpetuate a previous error.

4.  Evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  The ABCMR does not change military records based solely on the passage of time.

6.  Based on the foregoing, there is insufficient basis to upgrade the characterization of the applicant's discharge to honorable or under honorable conditions.



7.  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 that requirement.

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)                                         AR20080009615



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ABCMR Record of Proceedings (cont)                                         AR20080009615



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