IN THE CASE OF:	  

		BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090019574 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he has been punished enough since his discharge almost 40 years ago.  The applicant further states that he is now homeless and needs Department of Veterans Affairs (VA) services.

3.  The applicant provides a General Educational Development (GED) Diploma, dated 8 June 1999; a Certificate of Appreciation from the Mayor of Saint Paul, MN, dated 30 April 2005; and three letters of support dated 7 December 2006,
10 December 2006, and 27 December 2006.

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 on 10 July 1968.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 5 November 1968, the applicant was convicted by a special court-martial of stealing a wallet and money from a fellow Soldier.  His sentence consisted of a forfeiture of $68.00 per month for 6 months and confinement at hard labor for 
6 months.

4.  On 14 November 1969, the applicant was convicted by a special court-martial of two specifications of resisting arrest, two specifications of operating a vehicle in a reckless manner, and being absent without leave (AWOL) for the period 
2 September 1969 to 24 September 1969.  His sentence consisted of a forfeiture of $80.00 per month for 5 months, reduction to the rank/grade of private (PV1)/
E-1, and confinement at hard labor for 5 months.

5.  On 29 January 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being disorderly.

6.  On 25 March 1970, the applicant accepted NJP under Article 15, UCMJ for two specifications of being absent from his appointed place of duty.

7.  Evidence of record shows that the applicant was AWOL for the period 
21 April 1970 through 27 April 1970.

8.  On 11 May 1970, the applicant accepted NJP under Article 15, UCMJ for being absent from his appointed place of duty.

9.  On 3 June 1970, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order from a superior noncommissioned officer (NCO).

10.  On 17 June 1970, the applicant accepted NJP under Article 15, UCMJ for being absent from his appointed place of duty.

11.  On 21 August 1970, the applicant was convicted by a special court-martial of being AWOL for the periods 1 July 1970 to 3 August 1970 and 7 August 1970 to 9 August 1970, and for failing to repair and escaping lawful custody on 10 August 1970.  His sentence consisted of reduction to the rank/grade of PV1/E-1 and confinement at hard labor for 101 days.


12.  On 11 September 1970, the applicant's commander initiated discharge action on the applicant under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.

13.  On 9 October 1970, the applicant consulted with counsel.  He was advised of his rights and the effect of a waiver of those rights and of the basis for his separation under the provisions of Army Regulation 635-212.  The applicant indicated that he was counseled by appropriate counsel.  He requested counsel and a hearing by a board of officers.  He did not provide a statement in his own behalf.

14.  On 16 October 1970, an administrative separation board was held and the board members recommended the applicant's separation for unfitness and issuance of an Undesirable Discharge Certificate.

15.  On 10 December 1970, the appropriate authority approved the separation board's findings and recommendation to discharge the applicant under the provisions of Army Regulation 635-212 for unfitness with an undesirable discharge.

16.  On 28 December 1970, the applicant was discharged by reason of unfitness after completing 1 year, 4 months, and 15 days of creditable active service with 400 days of lost time due to AWOL and confinement.  Item 13a (Character of Service) of the applicant's DD Form 214 shows the entry "UNDER CONDITIONS OTHER THAN HONORABLE."

17.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 23 November 1981, the ADRB reviewed the applicant's request for upgrade.  Subsequently, the ADRB determined the applicant's discharge was proper and equitable and unanimously voted to deny his request.

18.  The applicant provided three letters of support dated in 2006.  The authors stated that the applicant is a trustworthy person and he is dedicated to the city and community.  One author stated that the applicant had volunteered many hours in helping the youth who participated in track and basketball in the Minnesota park and recreation system.  The applicant had met the requirements to obtain his GED.  The author stated that the applicant developed some serious health issues, which affected the kind of work he could perform.  The applicant was able to seek training in healthcare that was difficult but he persevered.

19.  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.

20.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he has been punished enough since his discharge almost 40 years ago, and he is homeless and needs VA services.  However, the ABCMR does not grant relief solely for the purpose obtaining VA or other benefits.

2.  His records show that he received five Article 15s, he was convicted by three special courts-martial, and he had five instances of AWOL.  He had completed 1 year, 4 months, and 15 days of creditable active service with 400 days of lost time due to AWOL and confinement.  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 discharge.

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

4.  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.

5.  Based on the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090019574



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ABCMR Record of Proceedings (cont)                                         AR20090019574



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