IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100007844 


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 undesirable discharge (UD) be upgraded to a general discharge.

2.  The applicant defers to letters submitted in his behalf for his statement to the Board.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and statements from:

* An evangelist/minister
* The community manager of his apartment complex
* A member of his church
* Four close friends
* 

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 military records show that he enlisted in the Regular Army on 4 April 1968.  The applicant never completed initial entry training (IET).

3.  On 19 July 1968, the applicant was convicted by a summary court-martial for:

* Striking a private in the face with his fist
* Striking a different private in the ribs with his feet
* Disobeying a lawful order to remove his hat
* Wrongfully and without proper authority wear with his uniform a civilian style hat
* Wrongfully appear with his shirttails out of his pants in an unclean Class A uniform
* Wrongfully appear without his military insignia in a Class A uniform

4.  On 27 September 1968, the applicant was convicted by a special court-martial for being absent without leave (AWOL) from 18 August to 8 September 1968.

5.  On 6 March 1969, the applicant's commander notified him of his intent to recommend his discharge due to unfitness and of his rights in conjunction with that recommendation.  The applicant waived his rights.

6.  On the same day, the applicant's commander forwarded his recommendation to discharge the applicant due to his two court-martial convictions and five counseling sessions which did not alter the applicant's behavior.

7.  On 19 May 1969, the applicant was convicted by a special court-martial for stealing two shirts, a total value of less than $50.00.

8.  The applicant's commander's recommendation was approved by the appropriate authority.  Accordingly, on 19 June 1969 the applicant was given a UD.

9.  The statements provided by the applicant show he is a hardworking, conscientious, benevolent, and religious man today.

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted a UD was normally considered appropriate.

11.  Army Regulation 635-200 sets forth the basic authority 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 letters submitted in the applicant's behalf certainly show that he is a hardworking, conscientious, benevolent, and religious man today.  He should be justifiably proud of who and what he is today.

2.  Unfortunately, his post-service conduct does not change the appropriateness of the discharge he was given.  The applicant was convicted by three courts-martial and had not even finished his IET.

3.  A UD was certainly appropriate in this case and there is no reason to change it.

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)                                         AR20100007844





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ABCMR Record of Proceedings (cont)                                         AR20100007844



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