BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100014824 


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.

2.  The applicant states he did not know what kind of discharge he would receive. He contends that no one told him anything.  He was told to sign the papers and he signed them.  He adds that he hurt his right knee and could not walk for three weeks.  They gave him his discharge but did not tell him he could stay in and get care for his leg.

3.  The applicant provides no additional evidence.

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 21 December 1966.  Upon completion of initial entry training he was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on the following dates for the offenses indicated:

	a.  20 October 1967 for being absent without leave (AWOL) from
4 to 9 October 1967;

	b.  27 October 1967 for being derelict in the performance of his duties by negligently failing to sign out on pass; and

	c.  29 November 1967 for being AWOL from 25 to 28 November 1967.

4.  He was convicted by special courts-martial on the following dates for the offenses as indicated:

	a.  5 March 1968 for being AWOL from 8 December 1967 to 3 February 1968;

	b.  25 April 1968 for being AWOL from 10 March to 1 April 1968;

	c.  15 August 1968 for being AWOL from 15 June to 5 August 1968; and

	d.  9 May 1969 for being AWOL from 3 March to 23 April 1969.

5.  On 8 July 1969, he was advised by his commander he was being recommended for elimination from military service under the provisions of Army Regulation 625-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  His commander stated the reason for the proposed separation action was his AWOL on six separate occasions.  He was advised he had the right to present his case 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.

6.  On 9 July 1969, he was evaluated by the Division Psychiatrist at the Mental Hygiene Consultation Division, Fort Bragg, NC.  He was diagnosed with emotional instability.  He was also found to meet the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.
He was 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.  The evaluating psychiatrist believed the applicant would not 

adjust to further military service and further rehabilitative efforts probably would be non-productive.  He recommended the applicant's discharge under the provisions of Army Regulation 625-212.

7.  On 10 July 1969, the applicant consulted with counsel and he was advised of the basis for the contemplated separation for unfitness, 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.  He indicated that he understood he might expect to encounter substantial prejudice in civilian life by reason of a general, under honorable conditions discharge.  He also acknowledge that as a result of issuance of an undesirable discharge under conditions other than honorable, that he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.

8.  The applicant's battalion and brigade commander concurred with the recommendation of the company commander and recommended issuance of an Undesirable Discharge Certificate.

9.  On 18 August 1969, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 and directed the issuance of an Undesirable Discharge Certificate.

10.  On 22 August 1969, he was accordingly discharged with an undesirable discharge.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had accrued 434 days of time lost.

10.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure 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.

12.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  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.

13.  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 evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  He consulted with legal counsel, he was advised of the basis for the separation action, 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.

3.  His record of indiscipline includes nonjudicial punishment on three occasions, four courts-martial convictions for being AWOL, and 434 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 an honorable or a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100014824



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ABCMR Record of Proceedings (cont)                                         AR20100014824



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