IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100016226 


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 undesirable discharge be upgraded.

2.  The applicant states he started out in the military as a good Soldier.  However, he took a wrong turn, got caught up with the wrong group of people, and went down the wrong road.  He was absent without leave (AWOL) several times.  He was young and wild.  He has learned from his mistakes and asks for forgiveness.  Since his discharge he has worked 41 years as a boilermaker with the same company.  He is a good craftsman and has trained others over the years.  For the past 15 years he has attended church regularly and led a good life.  He feels this is the last chapter of his life and would like to have his discharge upgraded.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), DA Form 20 (Enlisted Qualification Record), DA Form 20B (Record of Court-Martial Conviction), and six letters of support from friends, co-workers, and church members.

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.  On 9 June 1969, the applicant, who was then 18 years of age, enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 44C (Welder).

3.  The applicant's records show the following:

	a.  he was AWOL 27-28 July 1969 (1 day);

	b.  he was convicted by summary court-martial on 6 October 1969 for AWOL from 9 to 25 September 1969 (16 days);

	c.  he accepted nonjudicial punishment (NJP) on 20 January 1970 for missing bed check;

	d.  he accepted NJP on 7 July 1970 for not reporting to his place of duty;

	e.  he was advanced to specialist four, pay grade E-4 on 18 November 1970;

	f.  he accepted NJP on 11 January 1971 for not reporting to his place of duty; and

	g.  he accepted NJP on 26 January 1971 for missing morning formation and not reporting to his place of duty.

4.  A Report of Psychiatric Evaluation, dated 20 April 1971, states that the applicant was diagnosed with an immature personality, manifested by an inability to maintain himself in a consistent life style and by excessive use of drugs.  The applicant had been referred for hospitalization where he had spent 7 days recuperating from drug use.  He was oriented, rational, and coherent.  He gave no indication of abnormal thinking or behavior suggesting psychosis.  The finding was that the applicant's problems were related to his character and were not readily amenable to therapeutic, punitive, or rehabilitative efforts.  The physician recommended separation from the service as soon as possible.

5.  On 27 May 1971, the applicant's commander recommended him for separation due to unfitness under the provisions of Army Regulation 635-212.  The commander stated that the applicant was identified as having an immature personality, manifested by an inability to maintain himself in a consistent life style and by the use of drugs.  The applicant had worked for about 5 months in the Hanau, Germany area and was reassigned to Darmstadt, Germany due to his poor job performance.  After less than a month, he was returned to his former unit due to continued inefficiency and poor attitude.  Further rehabilitative efforts were considered unfeasible.

6.  On 2 June 1971, the applicant was notified of his pending separation because of a character and behavior disorder identified by the examining psychiatrist as having an immature personality, manifested by an inability to maintain himself in a consistent life style and by excessive use of drugs.

7.  On 13 June 1971, the applicant consulted with counsel and waived consideration of his case by a board of officers; waived representation by counsel; and did not elect to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge and directed that he be discharged due to unfitness and issued DD Form 258A (Undesirable Discharge Certificate).  He further directed that the applicant's DD Form 214 was to be annotated in accordance with paragraph 27, Army Regulation 635-212, with the appropriate separation program number (SPN).

9.  On 17 June 1971, the applicant was discharged under conditions other than honorable.  He had completed 1 year, 10 months, and 17 days of creditable active duty service and had 52 days of lost time due to AWOL and confinement.

11.  Item 11c (Reason and Authority) of the applicant's DD Form 214 states Army Regulation 635-212 SPN 28B.
 
12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

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, in pertinent part, 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 635-212 provided, in pertinent part, 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.

15.  Army Regulation 635-200 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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 contends that his undesirable discharge should be upgraded because he was young and wild.

2.  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.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  Based upon the applicant's entire record, it is apparent that the commander determined that his service did not warrant a separation due to unsuitability.

5.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was 18 years of age when he enlisted, had satisfactorily completed training, and had attained the rank of specialist four, pay grade E-4.  His satisfactory performance shows that he was neither too young nor immature to serve honorably.

6.  The applicant's record of service is greatly diminished by the summary court-martial and four NJP's that he received for AWOL.  and outweighed by the circumstances of the discharge.  Accordingly, he has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

7.  In view of the above, 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)                                         AR20100016226





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ABCMR Record of Proceedings (cont)                                         AR20100016226



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