IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100018692 


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 was told he was receiving a general discharge.  He adds that he did not receive his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) until after he returned to the States because he came home early to attend his mother's funeral.  He states he served in Vietnam and has service-connected conditions due to exposure to Agent Orange that he cannot be compensated for through the Department of Veterans Affairs.

3.  The applicant provides no additional documentary evidence in support of this application.

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 31 October 1968.  He was awarded the military occupational specialty of light weapons infantryman.
He was awarded the Air Medal for service in the Republic of Vietnam.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 14 January 1969 for being absent without leave (AWOL) on 10 January 1969.

4.  A certificate in his records citing the basis for a request to bar him from reenlistment indicates he received NJP on four occasions and none appeared to improve his apathetic manner and hostile attitude toward both his superiors and peers.

5.  A DD Form 458 (Charge Sheet), dated 12 May 1970, shows he was charged with:

* being found asleep while posted as a sentinel in an area designated as authorizing entitlement to special pay for duty subject to hostile fire
* being AWOL
* failing to obey a lawful order
* breaking restriction

6.  A complete discharge packet is not available for review.  His DD Form 214 shows he was discharged on 17 July 1970 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) with a separation program number of 386 for an established pattern for shirking.  He was issued an Undesirable Discharge Certificate.  He completed a total of 1 year, 8 months, and 17 days of active military service.  Item 30 (Remarks) shows 19 days lost under Title 10, U.S. Code, section 972.

7.  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.

8.  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) provided that members with an established pattern for shirking were subject to separation for unfitness.  An Undesirable Discharge Certificate was normally issued at the time.

9.  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.

10.  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 he was told he was receiving a general discharge.  However, there is no evidence available to support this contention.  However, even if that were the command's intention, it would not be a mitigating basis for changing his characterization of service.

2.  He was discharged under the provisions of Army Regulation 635-212 for unfitness.  He was charged with being found asleep while posted as a sentinel, being AWOL, failing to obey a lawful order, and breaking restriction.  The available evidence shows a disciplinary history that included receipt of NJP on four occasions.  A certificate citing the basis for a request to bar him from reenlistment indicated previous attempts to improve what was described as his apathetic manner and hostile attitude toward both his superiors and peers were unsuccessful.

3.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.

4.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  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 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)                                         AR20100018692



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ABCMR Record of Proceedings (cont)                                         AR20100018692



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