BOARD DATE:	  March 2, 2010

		DOCKET NUMBER:  AR20090016362 


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states that he was young and immature at the time of his enlistment and that he made some poor choices during his military service.  He adds that it has been over 40 years since he was discharged and that this discharge had prevented him from moving forward with his life.  At the time of his discharge, he was offered a medical discharge with a 30-percent disability rating but refused and was thus given a discharge under other than honorable conditions.  He feels that he should have never been given the choice between a medical discharge and an undesirable discharge if something was medically wrong with him.  However, he made the wrong choice and could not see at the time that the military was offering him a decent way out.  He is older now and has realized that it is an honor to serve this country.  He asks the Board to forgive him and give him the chance to make things right.  He only wants to clear his own conscience from the wrongs he has done.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 20 August 1970, in support of his request.

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 records show he was born on 2 August 1951 and enlisted in the Regular Army at 17 years and 6 months of age for a period of 2 years on 6 February 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he attained during his military service was private (PV2)/E-2.

3.  The applicant’s records also show he was awarded the National Defense Service Medal.  

4.  The applicant’s records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 28 April 1969, for dereliction in the performance of his duties in that he negligently failed to remain awake and alert while on fire guard duty on or about 28 April 1969.  His punishment consisted of a forfeiture of $25.00 pay, 14 days of restriction, and 14 days of extra duty;

	b.  on 20 May 1969, for disobeying a lawful order from a superior commissioned officer on or about 20 May 1969.  His punishment consisted of a forfeiture of $51.00 pay and 60 days of restriction; and

   c.  on 23 September 1969, for disobeying a lawful order from a superior commissioned officer on or about 21 September 1969.  His punishment consisted of 14 days of restriction and 14 days of extra duty.

5.  On 24 October 1969, the applicant pleaded not guilty at a special court-martial to one specification of wrongfully appropriating two sweaters, two jackets, and two cigarette lighters of a value of about $50.00 from another Soldier.  The court found him guilty of the specification (except the words two jackets and two cigarette lighters of a value of about $50.00, substituting the words "and one cigarette lighter of a value of about $15.00") and sentenced him to confinement at hard labor for 35 days, a forfeiture of $50.00 pay per month for 3 months, and a reduction to private/E-1.  The sentence was adjudged on 24 October 1969 and was approved on 30 October 1969.

6.  On 9 December 1969, the applicant departed his Fort Carson, CO, unit in an absent without leave (AWOL) status.  He was arrested by civil authorities for the civilian charges of theft and simple assault and was ultimately convicted and sentenced to imprisonment for 30 days for the charge of theft and 6 months for the charge of assault. 

7.  On 8 July 1970, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation 635-212 (Personnel Separations – Unfitness and Unsuitability) by reason of unfitness citing the applicant’s repeated commission of discreditable incidents with civil and military authorities.  The immediate commander further recommended an Undesirable Discharge Certificate.

8. On 20 July 1970, the applicant underwent a neuropsychiatric evaluation at Fort Carson, CO, in which he was determined to have had no disqualifying mental defects sufficient to warrant disposition through medical channels and, therefore, was cleared for elimination action by his chain of command. 

9.  On 20 July 1970, the applicant also underwent a complete medical examination wherein he was determined medically qualified without any medical or physical limitations. 

10.  On 22 July 1970, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under other than honorable conditions was issued to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf.



11.  The applicant's immediate commander initiated separation action against the applicant in accordance with Army Regulation 635-212 by reason of unfitness.  

12.  On 27 and 29 July 1970, the applicant's intermediate and senior commanders recommended approval of the applicant's discharge with an Undesirable Discharge Certificate.

13.  On 12 August 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  On 20 August 1970, the applicant was accordingly discharged from the Army.  The DD Form 214 he was issued confirms he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further confirms that he completed a total of 10 months and 25 days of creditable active military service and had 205 days of lost time.

14.  On 30 October 1974, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

15.  On 3 December 1998, the ABCMR denied the applicant's request for a medical discharge.

16.  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:

   a.  frequent incidents of a discreditable nature with civil or military authorities; 
   
   b.  sexual perversion; 
   
   c.  drug addiction; 
   
   d.  an established pattern of shirking; and/or 
   
   e.  an established pattern showing dishonorable failure to pay just debts.

17.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

18.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.  

19.  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.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  Paragraph 4-3a of the version in effect at the time state that an enlisted Soldier could not be referred to, or continue, physical disability processing when action had been initiated under any regulatory provision which authorized a characterization of service as under other than honorable conditions. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant’s records reveal an extensive history of indiscipline and/or misconduct including three instances of NJP, one instance of a court-martial, a civil conviction, and a history of AWOL.  Accordingly, his chain of command initiated separation action against him.  The applicant's discharge was in accordance with applicable regulation and all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  There is no evidence in the available records and the applicant did not provide any evidence that shows he was given a choice between a medical disability and an undesirable discharge.  Additionally, since he was pending a discharge for unfitness, which normally resulted in an undesirable discharge, he was precluded from being processed for a medical discharge.  
4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general or an honorable discharge.

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)                                         AR20090016362



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ABCMR Record of Proceedings (cont)                                         AR20090016362



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