BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100020026 


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 through his Member of Congress that his discharge be upgraded to an honorable discharge.

2.  The applicant states:

* Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge
* Under current standards he would not receive the type of discharge he received 
* His average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good]
* He received awards, decorations, and letters of recommendation
* He had combat service
* His record of promotions shows he was generally a good service member
* He has been a good citizen since he was discharged
* His record of nonjudicial punishment (NJP)/Article 15s indicates he committed only isolated offenses
* His record of convictions by civil authorities indicates his offenses were only minor or isolated 
* His use of alcohol and certain other problems impaired his ability to service
* The punishment he got was too severe compared with today’s standards
* When he got back from overseas, he just could not adjust to stateside duty

3.  The applicant provides a 10-page self-authored letter, letters of support, and copies of certificates of achievement and awards. 

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 for a period of 3 years on            30 August 1967.  The applicant completed the training requirements and he was awarded military occupational specialty 13E (Cannon Fire Direction Specialist).  The highest grade the applicant attained was specialist/pay grade E-4.

3.  The applicant received NJP under Article 15, Uniform Code of Military Justice (UCMJ) on the following dates:

   a.  On 19 December 1968, for failing to go at the time prescribed to his appointed place of duty.  

   b.  On 30 July 1970, for failing to go at the time prescribed to his appointed place of duty and disobeying a superior noncommissioned officer.  

4.  The applicant was convicted by a court-martial on the following dates:

   a.  On 17 June 1969, by a special court-martial for being absent without leave (AWOL) from 13 March to 20 May 1969.  The sentence consisted of a reduction to private first class/pay grade E-3, confinement at hard labor for 2 months, and a forfeiture of $46.00 pay for 2 months.


   b.  On 19 August 1970, by a summary court-martial for being AWOL from       8 August to 12 August 1970.  His sentence consisted of reduction to the grade of private/pay grade E-1, a forfeiture of $50.00 pay, and restriction for 30 days. 

5.  On 25 February 1971, court-martial charges were preferred against the applicant for two specifications of being AWOL during the periods on or about 
26 November to 19 December 1970 and 8 February to 25 February 1971.

6.  On 3 March 1971, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation 635-212 (Personnel Separations-Unfitness and Unsuitability) by reason of unfitness citing the applicant’s continuous disciplinary problems, being AWOL, and habitual misconduct.  

7.  On 11 March 1971, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and he was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined to make a statement in his own behalf.

8.  On 26 March and 29 March 1971, the applicant's immediate commanders recommended that the applicant be issued an Undesirable Discharge Certificate.

9.  On 2 April 1971, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed that the applicant be furnished an Undesirable Discharge Certificate.  

10.  On 12 April 1971, the applicant was accordingly discharged from the Army. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he was discharged with a character of service of under other than honorable conditions.  He had completed 3 years and 20 days of net active military service and he had 62 days of lost time under Title 10, U.S. Code Section and 141 days lost subsequent to his normal expiration term of service date.  

11.  On 17 July 1979, the Army Discharge Review Board approved the applicant’s request for an upgrade of his discharge.  The applicant’s discharge was upgraded to under honorable conditions. 

12.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:

* frequent incidents of a discreditable nature with civil or military authorities 
* sexual perversion 
* drug addiction
* an established pattern of shirking
* an established pattern showing dishonorable failure to pay just debts

13.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to an honorable discharge.

2.  The applicant’s records reveal an extensive history of indiscipline and/or misconduct including two NJPs actions, two court-martial convictions, and an extensive history of being AWOL.  Accordingly, his chain of command initiated separation action against him.  The applicant’s discharge was in accordance with applicable regulations and all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. 
Further, the applicant's discharge accurately reflects his overall record of service. 

3.  Although the applicant’s discharge was upgraded by the ADRB in 1979 to a general discharge his overall service does not reflect the standards of acceptable conduct and performance of duty for Army personnel to be granted an honorable discharge. 

4.  The applicant did not submit evidence that would satisfy the above requirement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable discharge.

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)                                         AR20100020026



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ABCMR Record of Proceedings (cont)                                         AR20100020026



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