IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100023961 


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 his undesirable discharge be changed to a general under honorable conditions discharge.  

2.  He states he was told his discharge would be changed after a long period out of the military.   

3.  He provides:

* medical documents
* two DD Forms 4 (Enlistment Contract – Armed Forces of the United States)
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 5 April 1971
* DA Form 20 (Enlisted Qualification Record)
* DA Form 20B (Insert Sheet to DA Form 20)
* discharge orders from the Regular Army, dated 7 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 enlisted in the Regular Army on 5 September 1969 for a period of three years.  His highest grade attained was private first class/E-3.  However, he held the grade of private/E-1 at the time of his separation.  

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, UCMJ, on three occasions for the offenses:

* being in an area which was off-limits
* failing to go at the time prescribed to his appointed place of duty
* disobeying a lawful order from sergeant first class

4.  His disciplinary record also shows he was convicted by a special court-martial of three specifications of being absent without leave from 4 to 10 June 1971, 
14 to 17 June 1971, and 24 June to 29 July 1971 and breaking restriction.

5.  The company commander notified the applicant of the pending separation action under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness for frequent incidents of a discreditable nature with military authorities.  He was advised of his rights.  The company commander recommended that the applicant be issued an undesirable discharge.

6.  He consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and did not submit statements in his own behalf.

7.  The separation authority waived rehabilitation requirements and directed separation under the provisions of Army Regulation 635-212 for unfitness with the issuance of an Undesirable Discharge Certificate.

8.  He was separated on 12 October 1971 under the provisions of Army Regulation 635-212 by reason of unfitness for frequent incidents of a discreditable nature with civil or military authorities with an undesirable discharge.  He completed 1 year, 9 months, and 11 days of active military service with 117 days of lost time.

9.  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 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.

10.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, 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.

11.  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’s contention that he was told his discharge would be changed after a long period out of the military is acknowledged.  However, the Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  

2.  His service record shows he received three Article 15s and one special 
court-martial.  



3.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of a general under honorable conditions or honorable discharge and characterized his service as undesirable.

4.  The evidence of record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his request for an upgrade of his discharge from undesirable to general under honorable conditions.

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)                                         AR20100023961





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ABCMR Record of Proceedings (cont)                                         AR20100023961



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