IN THE CASE OF:	  

		BOARD DATE:	    29 March 2011

		DOCKET NUMBER:  AR20100023992 


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 an upgrade of his undesirable discharge.

2.  The applicant states that on or about 29 May 1970, he was given 30 days of leave due to his mother's illness.  His company commander told him he would extend his leave beyond 30 days if nothing had happened.  When his leave expired, he contacted the Red Cross as well as his unit in an effort to obtain help but neither could do anything.  He then called Oakland, CA, and he was told to report there.  He did not feel he could leave his mother by herself in her condition.  He could not go to CA and then return to Fort Sill, OK, so he decided to stay with his mother.  He eventually turned himself in at Fort Sill and he was ultimately discharged with an under other than honorable conditions discharge.  He served his first enlistment with no problems.  His mother's illness was the controlling factor in his the problems he had during his second enlistment.

3.  The applicant did not provide additional evidence.

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 records show he enlisted in the Regular Army (RA) for a period of 3 years on 25 July 1965 and held military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).  

3.  He served in the Republic of Vietnam from 17 January 1966 to 10 January 1967.  He was honorably discharged on 13 December 1967 for the purpose of immediate reenlistment.  

4.  His DD Form 214 (Armed Forces of the United States Report of transfer or Discharge) for this period of service shows he was awarded the Vietnam Service Medal, National Defense Service Medal, Vietnam Campaign Medal, two overseas service bars, and the Marksman Marksmanship Qualification badge with Rifle Bar (M-14).

5.  He executed a 6-year reenlistment in the RA on 14 December 1967.  He was assigned to Fort Hood, TX.

7.  On 14 January 1969, at Fort Hood, TX, he was convicted by a special court-martial for one specification of being AWOL (absent without leave) from 9 October 1968 to 7 January 1969.  The court sentenced him to a forfeiture of $50.00 pay for 4 months and reduction to the rank/grade of specialist four/E-4.  The convening authority approved his sentence on the same date.

8.  On 23 June 1969, at Fort Hood, TX, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for speeding on post.

9.  He again served in Vietnam from 11 September 1969 to on or about 29 June 1970. 

10.  On 18 December 1969, in Vietnam, he accepted NJP under the provisions of Article 15 of the UCMJ for possessing marijuana.

11.  On 1 December 1970, at Fort Sill, OK, he was convicted by a special court-martial of one specification of being AWOL from 29 June to 5 November 1970.  The court sentenced him to confinement at hard labor for 60 days and a forfeiture of $45.00 pay per months for 4 months.  The convening authority approved his sentence on the same date.
12.  The specific facts and circumstances surrounding his discharge are not available for review with this case; however, his records contain:

	a.  A memorandum, dated 18 December 1970, that shows the Commanding General, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, approved his discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness with the issuance of an Undesirable Discharge Certificate; and 

	b.  A DD Form 214 that shows he was discharged from the Army on 23 December 1970 in the rank/grade of private/E-1 under the provisions of Army Regulation 635-212 by reason of unfitness, Separation Program Number  386 (Established Pattern of Shirking) with a character of service of under other than honorable conditions.  He was issued a DD Form 258A (Undesirable Discharge Certificate).  His DD Form 214 further shows he completed 2 years, 3 months, and 14 days of creditable active service during this period and he also had 266 days of lost time.

13.  On 29 November 1972, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness and unsuitability.  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:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

15.  Army Regulation 635-200 (Personnel 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 (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 discharge should be upgraded.

2.  The applicant’s record is void of the specific facts and circumstances that led to his discharge.  However, the evidence of record shows that the applicant had two instances of NJP, two instances of courts-martial, and multiple instances of AWOL.  It appears his chain of commander initiated separation action against him.  His record contains a DD Form 214 that shows he was discharged on 23 December 1970 under the provisions of Army Regulation 635-212 by reason of unfitness with an under other than honorable conditions character of service.

3.  Absent evidence to the contrary, it is presumed all requirements of law and regulation were met and his rights were presumably fully protected throughout the separation process.  It is also presumed his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  There is no evidence in the applicant’s records and the applicant did not provide any substantiating evidence that shows he was undergoing family problems related to his mother or that his multiple instances of AWOL were caused by the illness of his mother.

5.  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 a general or 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)                                         AR20100023992



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ABCMR Record of Proceedings (cont)                                         AR20100023992



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