IN THE CASE OF:	  

		BOARD DATE:	       19 MAY 2009

		DOCKET NUMBER:  AR20090002893 


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, in effect, that his undesirable discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states, in effect, that he was under great distress being away from his family during the period of on or about February through July 1971.  He states that he started hanging out with the wrong people and started using drugs.  He was convicted by a summary court-martial and confined for 30 days for stealing a watch valued at $30.00 in March 1971.  He states that his motivation at that time was not good and his emotions were wild and out of order.  He wanted to get out of the Army because he was afraid and did not know how to express it.  He has been married now for 18 years and has three daughters.  He would like to get his undesirable discharge changed to a general under honorable conditions discharge so he can be at peace with himself.  He continues by stating that he is now 59 years old and his health is declining.  He feels it is important for him and his family to get some relief from this blight in his life.

3.  The applicant provides three character references 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 19 May 1969.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 11B (light weapons infantryman).  His highest grade attained was private, E-2.

3.  On six occasions between 25 June 1969 and 20 September 1970, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for the following offenses:  unlawfully striking a private, disobeying a lawful order from a noncommissioned officer, being absent from his place of duty, assault, failing to go to his appointed place of duty, breaking restriction, disobeying a lawful command from a commissioned officer, and being disrespectful to a commissioned officer.

4.  On 19 December 1969, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 5 October 1969 to 26 November 1969.  He was sentenced to restriction to Fort Sill, OK, for 1 month and forfeiture of $25.00 pay for 1 month.

5.  On 13 November 1970, the applicant was convicted by a summary court-martial of being AWOL from 12 October 1970 to 19 October 1970.  He was sentenced to confinement at hard labor for 30 days (suspended for 60 days) and forfeiture of $94.00 pay for 1 month.

6.  On 2 February 1971, the applicant was convicted by a summary court-martial of stealing a watch of a value of about $30.00.  He was sentenced to confinement at hard labor for 30 days (suspended for 30 days) and forfeiture of $88.00 pay for 1 month.

7.  The applicant underwent a psychiatric examination on 23 February 1971.  The psychiatrist indicated that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He was diagnosed as having a passive-aggressive personality disorder.  The psychiatrist recommended separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).
8.  On 4 January 1971, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-212 based on unfitness.  He was advised of his rights; however, he waived his rights.

9.  The separation authority approved the separation action under the provisions of Army Regulation 635-212, paragraph 6a(1), by reason of unfitness based on frequent incidents of a discreditable nature with civil or military authorities and an established pattern for shirking, and directed issuance of an Undesirable Discharge Certificate.

10.  On 13 April 1967, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness - frequent incidents of a discreditable nature with civil or military authorities.  He completed 1 year, 8 months, and 2 days of active military service.  He had 111 days of lost time due to AWOL and confinement.

11.  The applicant provided character references in support of his claim.  The individuals stated, in effect, that they had known the applicant for several years and described him as being a caring family man, respectful member of his community, trustworthy, and honest.

12.  On 11 February 1975 and 19 October 1982, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  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 undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

15.  Army Regulation 635-200, 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’s statements regarding the circumstances which led to his discharge are noted.  Although he may now feel that his undesirable discharge should be upgraded, his service does not meet the standards of acceptable conduct and performance of duty to warrant a general or honorable discharge.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

3.  The applicant’s record of service shows he received six Article 15s and was convicted by two summary courts-martial and one special court-martial.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgrade.

4.  The applicant has provided no evidence other than his self-authored statement that the circumstances regarding his personal problems were the reasons he committed the offenses which led to his discharge.  Even if so, he had the responsibility to resolve his personal problems through other means to include seeking help from his chain of command.  Therefore, he has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

5.  The applicant's character references were noted.  However, they are not sufficiently mitigating to grant relief in this case.

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.



      __________XXX_______________
                 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)                                         AR20090002893



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ABCMR Record of Proceedings (cont)                                         AR20090002893



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