IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100013261 


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 (UD) be upgraded.

2.  The applicant states that:

	a.  he enlisted in the Army when he was a young black man during the civil rights movement;

	b.  he rebelled against many of the Army's ways of doing things, not realizing the consequences of his actions and how they would affect him today;

	c.  it has been 40 years since he made those mistakes and for the first time he is attempting to rectify them and bring that part of his life to a close; and

	d.  it would mean a great deal to his loved ones and children who would benefit significantly if his UD was upgraded.

3.  The applicant provides no additional documentary evidence supporting 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 and entered active duty on 18 July 1968.  He served in military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was twice advanced to private (PV2)/E-2, on 18 November 1968 and on 17 December 1969, and this was the highest rank he attained while serving on active duty.  It also shows he was reduced on two separate occasions to private (PVT/E-1), the last of which was on 10 March 1970.

4.  The applicant's DA Form 20 also shows in item 44 (Time Lost Under Section 972, Title 10, U.S. Code) that he accrued 348 days of lost time between 12 December 1968 and 15 March 1970 as a result of being absent without leave (AWOL) or in confinement.

5.  On 24 March 1969, a special court-martial found the applicant guilty of being AWOL from on or about 12 December 1968 to 20 February 1969.  The resulting sentence was confinement at hard labor 6 months (suspended), forfeiture of $73.00 pay per month for 6 months, and a reduction to PVT/E-1.

6.  The applicant's record also reveals a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on the following three dates for the indicated infractions:

* 26 February 1970, for disobeying a lawful order given by his superior commissioned officer
* 10 March 1970, for failure to repair
* 14 March 1970, for being AWOL for 2 days

7.  On 25 March 1970, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating the following three articles of the Uniform Code of Military Justice:

* Article 90 (two specifications), for disobeying a lawful order issued by his superior commissioned officer
* Article 91, for disobeying a lawful order issued by his superior noncommissioned officer
* Article 86 (two specifications), for being AWOL

8.  On 25 March 1970, the applicant underwent a psychiatric examination.  The examining psychiatrist determined the applicant represented a basic character and behavior disorder that was not amenable to hospitalization, treatment in a military setting, disciplinary action, training, or reclassification to another type of duty.

9.  The examining psychiatrist also indicated the applicant was found to be 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 judicial proceedings.  The psychiatrist indicated that there were no disqualifying mental defects sufficient to warrant disposition through medical channels and cleared him for administrative separation action from a psychiatric viewpoint.

10.  On 27 March 1970, the unit commander notified the applicant that he was recommending him for discharge under the provisions of Army Regulation 
635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness due to his inability to cope with military life and his consistent AWOL infractions.

11.  On 27 March 1970, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, a personal appearance before a board of officers, and representation by counsel.  He further elected not to submit a statement in his own behalf.

12.  On 10 April 1970, the separation authority approved the recommendation and directed that the applicant receive a UD.  On 15 April 1970, the applicant was discharged accordingly.

13.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant at the time confirms he completed a total of 9 months and 15 days of creditable active military service and he accrued 348 days of lost time.

14.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an honorable discharge or a general discharge if warranted by the member's overall record of service.  However, a UD was normally considered appropriate for members separating under these provisions.

16.  Army Regulation 635-200 (Personnel 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.

17.  Paragraph 3-7b of Army Regulation 635-200 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 request that his UD be upgraded was carefully considered.

2.  The evidence of record confirms the applicant was properly advised by his commander that separation action was being initiated and he was afforded the opportunity to consult with counsel and to be advised of his rights in connection with the separation action prior to completing an election of rights.

3.  The record further shows the applicant was counseled concerning his rights and he voluntarily elected to waive his right to consideration of his case by a board of officers.  As a result, it is clear his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's record documents an extensive disciplinary history that includes a special court-martial conviction and three nonjudicial punishments.  As a result, it is clear his UD accurately reflects the overall qualify of his service.  It is also clear his record did not support the issuance of an honorable discharge or a general discharge by the separation authority at the time of his discharge and does not support an upgrade of his discharge now.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100013261



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ABCMR Record of Proceedings (cont)                                         AR20100013261



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