IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100015541 


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 that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  He states he has been sufficiently punished for his youthful indiscretions that caused a blemish to his character 37 years ago.  He offers that his first term of service was served honorably.  However, during his second enlistment he was stationed in Thailand where there was easy access and temptation which led him to experiment with drugs.  He maintains he has led an honorable life as a private citizen.  He explains he has always been employed, is the primary caregiver and financial supporter for his parents, and participates in civic and charitable programs.

3.  He provides the following:

* 25 June 1969 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Hunter County Building Maintenance identification card
* Elks Lodge membership card
* Maintenance and Readiness Department School certificate
* U.S. Army Signal School Diploma, dated 11 December 1970
* Defensive Drivers Course certificate, dated 15 January 1971
* Special Orders Number 118 Extract, dated 22 October 1971


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 enlisted in the Regular Army on 30 September 1968.  He served 8 months and 25 days of his first 3-year enlistment term and was honorably released for immediate reenlistment.  He reenlisted on 26 June 1969.  He served in Thailand from 2 December 1971 to 22 October 1972.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the following offenses:

* falling asleep while being posted as a barracks guard on 11 September 1971
* failing to go at the prescribed time to his appointed place of duty on 2 May 1972, 29 June 1972, and 30 June 1972

4.  On 27 September 1972, the unit commander notified the applicant of his intent to recommend his separation from the Army under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability.

5.  On 27 September 1972, the applicant consulted with military counsel.  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, to personal appearance before a board of officers, and to counsel.  He also elected not to submit statements on his behalf.

6.  He acknowledged that he may be furnished an Under Honorable Conditions Discharge Certificate and that he may expect to encounter substantial prejudice in civilian life because of a discharge characterized as under honorable conditions.

7.  On 4 October 1972, he underwent a mental status evaluation and he was determined to be mentally cleared for separation.

8.  On 13 October 1972, the unit commander requested his separation under the provisions of Army Regulation 635-212 for unsuitability.

9.  On 16 October 1972, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 for, unsuitability.  He directed that the applicant be furnished a General Discharge Certificate.

10.  His DD Form 214 shows he was discharged on 2 November 1972 under the provisions of Army Regulation 635-212 with a characterization of service of general under honorable conditions.  The applicant was credited with completing 4 years and 26 days of active service.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within the 15-year statute of limitations of that board.

12.  In support of his application, he provides certificates that show he successfully completed the U.S. Army Signal School, Maintenance and Readiness Department School, and Defensive Drivers Course while on active duty.

13.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's argument that he served honorably during his first term of enlistment and is currently an outstanding citizen was considered.  However these facts are not sufficiently mitigating to support his request for an honorable discharge.

2.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

3.  The applicant must provide evidence to prove his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  He failed to provide such evidence.

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 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)                                         AR20100015541



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ABCMR Record of Proceedings (cont)                                         AR20100015541



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