IN THE CASE OF:	  

		BOARD DATE:	  27 January 2010

		DOCKET NUMBER:  AR20090012919 


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 (UD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, he was discharged more than 30 years ago, and now he needs benefits and assistance with his medical conditions.  

3.  The applicant provides no supporting documentary evidence 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's record shows he was inducted into the Army and entered active duty on 1 March 1971.  He successfully completed basic combat training at Fort Lewis, Washington, and was assigned to Fort Polk, Louisiana, to attend advanced individual training in military occupational specialty 11B (Infantryman). His record documents no acts of valor or significant achievement.  

3.  The applicant's disciplinary history includes his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions between 25 June 1971 and 27 July 1971.  It also includes a 29 September 1971, summary court-martial (SCM) conviction for violating Articles 91, 121 and 134 of the UCMJ.  It also shows that on 26 October 1971, he departed absent without leave (AWOL) from his AIT unit and that he remained AWOL for 195 days until returning to military control on 
7 May 1972.  

4.  The unit commander notified the applicant of his intent to recommend the applicant be discharged under the provisions of Army Regulation 635-212, by reason of unfitness.  The unit commander indicated the action was based on the applicant's record of AWOL and advised the applicant of his rights.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and of his rights in connection with the action.  Subsequent to receiving this legal counsel, the applicant completed an election of rights in which he waived his right to consideration by and personal appearance before a board of officers, his right to representation by counsel, and he elected not to submit statements in his own behalf.  

5.  On 2 June 1972, the applicant's unit commander recommended that he be eliminated from the service under the provisions of Army Regulation 635-212, by reason of unfitness (frequent incidents of a discreditable nature with military authorities).  The unit commander cited the applicant's disciplinary history and his negative attitude towards responsibilities required of a Soldier and his lack of progress in the Army, which made him unfit for further service.  

6.  On 5 June 1972, the applicant's battalion commander recommended approval of the separation recommendation with the issuance of an UD.

7.  On 12 June 1972, the separation authority approved the separation action and directed that the applicant be discharged for unfitness under the provisions of Army Regulation 635-212, and that he be furnished an UD.  He further directed that the applicant be reduced to the lowest enlisted grade.  On 16 June 1972, the applicant was discharged accordingly.  

8.  On 5 January 1982, the Army Discharge Review Board, after careful consideration of the applicant's entire military record and the issues presented by the applicant, determined his discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge and/or to change the reason for his discharge.  

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and 
(6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  The separation authority could authorize a GD under honorable conditions or an HD if warranted by the member's record of service; however, when separation for unfitness was warranted, an UD was normally considered appropriate.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a provides that an HD 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.

11.  Paragraph 3-7b of the same regulation provides that a GD 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded based on the fact it has been over 30 years since his discharge and because he is in need of benefits and medical assistance was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief. 
2.  The applicant's record confirms his separation processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.   His record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history that includes his acceptance of NJP on three separate occasions and a SCM conviction.  He also accrued 195 days of lost time due to being AWOL.   Given the applicant's short and undistinguished record of service and his extensive record of misconduct, the UD he received accurately reflects the overall quality of his service, which did not support the issuance of a GD or HD at the time of his discharge, and it does not support an upgrade at this time.  

3.  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 this 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)                                         AR20090012919



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ABCMR Record of Proceedings (cont)                                         AR20090012919


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