BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100011780 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states:

* He waived his rights to a trial so he could be sent back to the states
* He was serving in Korea at the time of his discharge
* He did not have adequate counsel

3.  The applicant provides no 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 enlisted in the Regular Army on 16 July 1971 for a period of 3 years.  He successfully completed his training and was awarded military occupational specialty 11B (light weapons infantryman).  He arrived in Korea on 23 December 1971.

3.  On 29 February 1972, nonjudicial punishment (NJP) was imposed against the applicant for violating a lawful general regulation (overnight pass violation).  His punishment consisted of a forfeiture of pay. 

4.  On 22 May 1972, NJP was imposed against the applicant for violating a lawful general regulation (overnight pass violation).  His punishment consisted of a forfeiture of pay and extra duty. 

5.  On 20 June 1972, NJP was imposed against the applicant for absenting himself from his appointed place of duty for 8 and 1/2 hours.  His punishment consisted of a forfeiture of pay, extra duty, and restriction. 

6.  On 2 September 1972, NJP was imposed against the applicant for breaking restriction.  His punishment consisted of a reduction to E-2, a forfeiture of pay and extra duty. 

7.  On 8 September 1972, NJP was imposed against the applicant for breaking restriction.  His punishment consisted of a forfeiture of pay, extra duty, and restriction. 

8.  On 13 November 1972, NJP was imposed against the applicant for absenting himself from his appointed place of duty from 2030 hours on 10 November 1972 until 1000 hours on 12 November 1972.  His punishment consisted of a forfeiture of pay, extra duty, and restriction. 

9.  On 29 November 1972, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities with an undesirable discharge.  The unit commander based his recommendation for separation on the applicant's repeated incidents of failing to go to his appointed place of duty, breaking company restriction, and overnight pass violations.  He stated the applicant had received six NJPs and that his duty performance was far below excepted standards within the military service. 

10.  On 29 November 1972, after consulting with counsel and being advised of his separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf.
11.  On 7 December 1972, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.

12.  The applicant was transferred back to the states on 15 December 1972.

13.  On 16 December 1972, the applicant was separated with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 5 months, and 1 day of creditable active service.

14.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 (Personnel Separations), 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.  There is no evidence of record to support the applicant’s contention he did not have adequate counsel.  Evidence of record shows he consulted with counsel prior to waiving his rights.

2.  The applicant's record of service included six NJPs.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

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)                                         AR20100011780





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ABCMR Record of Proceedings (cont)                                         AR20100011780



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