IN THE CASE OF:	  .

		BOARD DATE:	       13 AUGUST 2009

		DOCKET NUMBER:  AR20090004490 


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 general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states that he fell short of personal and military goals in 
1970 and he did the best he could under the circumstances at that time.  He has no criminal record or credit problems.  

3.  The applicant provides a letter of support from a fellow co-worker, dated 
26 February 2009.

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.  He enlisted in the Regular Army on 27 January 1969 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 63H (Engine and Power-Train Repairman).

3.  On 8 September 1969, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for the period 2 September 1969 through 5 September 1969.

4.  On 8 November 1969, he arrived in Vietnam and was assigned to the 160th Heavy Equipment Maintenance Company, 86th Maintenance Battalion.

5. On 3 March 1970, he was convicted by a summary court-martial of failing to be at his appointed place of duty and disobeying a lawful order.  His sentence consisted of a forfeiture of $77.00 pay per month for one month.

6.  On 10 March 1970, he accepted NJP under Article 15, UCMJ, for sleeping on his guard post.

7.  30 March 1970, he underwent a psychiatric evaluation.  He was diagnosed with no mental disease.  The military psychiatrist determined that the applicant had a strong negative attitude towards the military and because of this his rehabilitation potential was minimal.  He had already had a  rehabilitation transfer  with no change in his attitude.  He was cleared psychiatrically for any administrative action deemed appropriate by his commander.

8.  On 5 May 1970, his commander signed an elimination packet on him for separation under the provisions of Army Regulation 635-212 for unfitness.  The reason cited by the commander was the applicant's habits and traits of character manifested by repeated commission of petty offenses and habitual shirking  

9.  On 25 May 1970, he was advised by consulting counsel of the basis for the contemplated separation action.  He was advised of the impact of the discharge action.  He signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  He declined to submit a statement on his own behalf.

10.  On 4 June 1970, the appropriate authority approved the recommendation and directed the applicant receive a General Discharge Certificate under the provisions of Army Regulation 635-212 for unfitness.  On 8 June 1970, he was separated from the service after completing 1 year, 4 months, 13 days of creditable active service with no lost days.
.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.

12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

2.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's records indicate that he received two Article 15s and that he was convicted by a summary court-martial.  The applicant had completed only 1 years, 4 months, and 13 days of active creditable service.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  ____XX____  ___XX_____  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)                                         AR20090004490





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ABCMR Record of Proceedings (cont)                                         AR20090004490



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