IN THE CASE OF:	  

		BOARD DATE:	    24 August 2010

		DOCKET NUMBER:  AR20100012179 


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 an honorable or a general discharge.

2.  The applicant states he went AWOL (absent without leave) because he was under the influence of alcohol and drugs.  He contends he did not start drinking or using drugs until he went into the Army.  He was young and stupid and now realizes that other guys in the Army talked him into doing drugs and alcohol.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 born on 19 December 1947.  He enlisted in the Regular Army on 21 April 1969 and upon completion of initial entry training he was awarded military occupational specialty 94B (Cook).

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 21 October 1969 for being AWOL from 26 July 1969 to 5 August 1969 and on 21 November 1969 for being AWOL from 10 November 1969 to 12 November 1969.

4.  On 18 February 1970, he was found guilty by a summary court-martial of two specifications of AWOL from 4 January 1970 to 28 January 1970 and from 
29 January 1970 to 5 February 1970.

5.  On 2 July 1970, he was found guilty by a special court-martial of being AWOL from 26 February 1970 to 9 June 1970.

6.  In a letter addressed to his mother, dated 22 February 1971, his commander indicated the applicant again departed AWOL on 25 January 1971 and he was dropped from the rolls (DFR) of the Army on 22 February 1971.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows his duty status changed from DFR-desertion to duty Soldier, effective 13 April 1971.

7.  On 14 April 1971, he was advised by his commander he was being recommended for discharge from the service under the provisions of Army Regulation 625-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.  The commander cited as the reason for the proposed separation action the applicant's AWOL record.  He was also advised he had the right to appear before a board of officers, to submit a statement in his own behalf, to be represented by counsel, or to waive those rights in writing.

8.  On 16 April 1971, the applicant consulted with counsel and he was advised of the basis for the contemplated separation, of its effects, and of the rights available to him.  Subsequent to this counseling, he waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and he elected not to submit a statement in his own behalf.

9.  On 28 April 1971, he underwent a psychiatric evaluation and he was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  He was cleared for any administrative decision deemed appropriate by his command.

10.  On 14 June 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 and directed he receive an undesirable discharge.

11.  On 23 June 1971, he was discharged with a character of service of under conditions other than honorable and issued an Undesirable Discharge Certificate. His DD Form 214 shows he had accrued 319 days of time lost at the time of his separation.

12.  On 30 June 1986, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge.

13.  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.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he was young and under the influence of alcohol and drugs has been carefully considered.

2.  The record shows he was 21 years and 4 months old when he entered active duty and completed initial entry training.  This shows he was mature enough to satisfactorily serve.  There is no evidence indicating he was any less mature than 

other Soldiers of the same age who successfully completed their terms of military service.  There is also no evidence he was suffering from any mental or emotional problems as a result of his alcohol and drug usage.

3.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  He consulted with legal counsel and he was provided the opportunity to provide a statement in his own behalf at the time.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  His record of indiscipline includes nonjudicial punishment on two occasions, two court-martial convictions, and 319 days of time lost.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either 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)                                         AR20100012179



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ABCMR Record of Proceedings (cont)                                         AR20100012179



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