IN THE CASE OF:	  

		BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100024562 


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, in effect, he is an only son and he did not want to serve in an active duty status.  He contends he was on orders for Vietnam and went home on leave.  While on leave, his cousin, who was in the Marine Corps, lost his life and his body was brought home just days before his period of leave ended.  He was terrified and confused and he wandered from state to state as a traveling salesperson until he turned himself in.  When he was at the Correctional Facility, Fort Riley, KS, he was assaulted and nothing was done about it.

3.  Additionally, he states his date of birth is 15 January 1949 vice 14 January 1949. 

4.  The applicant provides no additional documentation.

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 was inducted into the Army on 21 May 1968.  Upon completion of initial entry training, he was awarded military occupational specialty 05B (Radio Operator).  His Record of Induction shows his date of birth as 14 January 1949.

3.  On 5 September 1968, he accepted nonjudicial punishment for being absent from his unit without proper authority on 3 September 1968.

4.  On 25 November 1969, he was found guilty by a special court-martial of being absent without leave (AWOL) from 14 November 1968 through 21 October 1969.

5.  On 7 July 1970, he accepted nonjudicial punishment for three specifications of failing to go at the time prescribed to his appointed place of duty and for disobeying a lawful order from a noncommissioned officer.

6.  On 16 July 1970, he underwent a psychiatric evaluation and was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to participate and cooperate in any administrative proceedings deemed necessary.  The evaluating physician concluded there were no disqualifying mental defects sufficient to warrant disposition through medical channels and strongly urged that he be administratively separated.

7.  On 22 July 1970, his commander recommended he appeared before a board of officers to determine whether he should be discharged under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  His commander based his recommendation on habits and traits of characters manifested by repeated commission of petty offenses and habitual shirking.  The commander indicated the applicant had been counseled a number of times about disrespect to superiors, being at his appointed place of duty, and the practice of writing bad checks.  The commander also indicated that he had discussed with him the implications of an undesirable discharge in his civilian life but he stated that he did not care.

8.  He consulted with counsel and was advised of the basis for the contemplated separation action under the provisions of Army Regulation 635-212 for unfitness. 
He stated that he understood he could encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He also acknowledged he understood that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State law.  Subsequent to this counseling, he waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and elected to submit a statement in his own behalf.

9.  He provided a statement in which he requested he be given a general, under honorable conditions or honorable discharge because his problems in the Army had not been solely his fault.

10.  His chain of command recommended approval of the separation action and the issuance of an undesirable discharge.  The separation authority approval document was not found in his military file; however, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 31 July 1970 with an undesirable discharge.  He had also accrued 434 days of lost time.  His DD Form 214 shows his date of birth as 14 January 1949.

11.  There is no evidence that shows he was assaulted while at the Fort Riley, KS correctional facility.

12.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  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) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities and an established pattern of shirking were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.

15.  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 evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  His record of indiscipline includes nonjudicial punishment on two occasions, a court-martial conviction, and 434 days of lost time.  Based on his record of indiscipline his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, his service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

3.  His Record of Induction shows his date of birth as 14 January 1949 and he failed to provide evidence to support his claim that this date is incorrect.  He also failed to provide evidence substantiating his claim that he was assaulted while at the Fort Riley, KS correctional facility.

4.  Based on the foregoing, there is no basis to grant his 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 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)                                         AR20100024562



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ABCMR Record of Proceedings (cont)                                         AR20100024562



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