BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100010118 


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 undesirable discharge to general discharge.

2.  The applicant states his father abandoned his mother and young siblings shortly after he entered basic training.  His mother was not doing well and he requested hardship leave and was denied but with help from the chaplain he was allowed 10 days of leave.  He was compelled by the situation at home to go absent without leave (AWOL) for which he received disciplinary action.  The situation became worse and again he was denied leave and again sought help from the chaplain.  He was granted 10 days of leave and again went AWOL and accepted punishment for his choice.   He was sent to the stockade for missing reveille and upon his release he consented to an under other than honorable conditions discharge under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability).

3.  The applicant did not provide any additional documentary evidence 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 record shows he was inducted into the Army of the United States on 29 July 1966.  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  At the time of his separation he held the rank/grade of private (PV1)/E-1.

3.  His record reveals a disciplinary history that includes two special courts-martial convictions for absenting himself from his unit without authority.

4.  On 22 September 1967, his immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation
635-212 for unfitness.  He was informed that the basis for the recommendation was his record of AWOL and two courts-martial convictions.  He was advised of his right to present his case before a board of officers, to be represented by counsel, to submit written statements in his own behalf, or to waive these rights in writing.

5.  On 3 February 1968, the separation authority waived further rehabilitation requirements and directed that the applicant be discharged with issuance of an Undesirable Discharge Certificate.  On 9 February 1968, he was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-212 by reason of unfitness.

6.  On 21 May 1976, a representative of The Adjutant General of the Army informed the applicant that the Army Discharge Review Board (ADRB), after careful consideration of his records and all other available evidence, had determined that he was properly discharged.  Accordingly, the Secretary of the Army directed that he be advised that his request for change in the type and nature of his discharge had been denied.

7.  Army Regulation 635-212 set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6 of the regulation 


provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  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 an undesirable discharge was normally considered appropriate.

8.  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 applicant's contention that his undesirable discharge should be upgraded to a general discharge was carefully considered.

2.  His record reveals a disciplinary history that includes two special courts-martial convictions resulting in his subsequent discharge.

3.  The evidence of record shows he was discharged under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally undesirable and the applicant was made aware of this prior to his discharge.

5.  In view of the foregoing, there is no basis for upgrading the applicant's undesirable discharge to a general 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)                                         AR20100010118



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ABCMR Record of Proceedings (cont)                                         AR20100010118



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