IN THE CASE OF:	  

		BOARD DATE:	    28 April 2011

		DOCKET NUMBER:  AR20100025211 


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 upgraded to an honorable discharge and that his narrative reason be changed.  

2.  He states:

	a.  Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge.

	b.  He received diverse awards and decorations while on active duty and completed specialty training as a paratrooper on 2 November 1971.   

   c.  He has been a good citizen since his discharge and completed formal training and trade-specific education for welding.  He serves as a leader in his church and has not had any arrests or altercations with the law since his discharge.  
   
   d.  His record of nonjudicial punishments under Article 15, Uniform Code of Military Justice, court-martial convictions, and convictions by civil authorities indicates only isolated and minor offenses.  
   
	e.  His ability to serve was impaired by his youth and immaturity, and deprived background.  



3.  He provides documents from his service personnel records, his resume, a letter from the Tidewater Tech Trades, and a letter of recommendation.

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 born on 22 November 1952.  He enlisted in the Regular Army on 26 February 1971 for a period of two years at the age of 19 years and 2 months.  

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice, on seven occasions for disobeying a lawful order and for failing to go at the time prescribed to his appointed place of duty.

4.  His disciplinary record also shows he was convicted by a special court-martial of stealing a car and a money order from an E-8 and being absent without leave from 1 to 4 October 1971.  

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 - frequent incidents of a discreditable nature with military authorities.  He was advised of his rights.  

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 approved separation action under the provisions of Army Regulation 635-212 for unfitness with the issuance of an Undesirable Discharge Certificate.
8.  He was discharged on 10 August 1972 under the provisions of Army Regulation 635-212 by reason of unfitness - frequent incidents of a discreditable nature with civil or military authorities with an undesirable discharge.  He completed 1 year, 2 months, and 18 days of active military service with 89 days of lost time.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the National Defense Service Medal and Parachutist Badge during his tenure on active duty.  

9.  Item 11c (Reason and Authority) on his DD Form 214 shows a separation program number (SPN) of “28B” (unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities).

10.  On 22 June 1982, the Army Discharge Review Board denied his request for an upgrade of his discharge.  

11.  He provided a letter from a Welding Coordinator at Tidewater Tech Trades which stated he had been a full-time welding student since 2 November 2009.  The letter indicated his scheduled graduation date was 13 June 2010, and he would have received 24 credits for a diploma for combination welding, and a grade point average of 4.0 with perfect attendance.  

12.  He also provided a letter of recommendation in which he was given accolades for his work ethics, good attitudes, and dedication as a Christian and husband.  

13.  References:

	a.  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.



	b.  Army Regulation 635-5 (Separation Documents), dated 23 May 1972,  established the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directed that the regulatory authority and reason for the separation will be entered in item number 11c of the DD Form 214.  The narrative reason for separation is based on the governing Army regulation and the SPN as shown in Appendix I of Army Regulation 635-5.  The SPN “28B” listed in Appendix A-1 of this regulation specifies the narrative reason for discharge is “unfitness - frequent involvement in incidents of a discreditable nature with civil 
or military authorities” and that the authority for discharge is “Army Regulation 635-212.”

	c.  Army Regulation 635-200 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	d.  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 administrative separation under the provisions of Army Regulation 635-212 for unfitness - frequent incidents of a discreditable nature with military authorities was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He was discharged on 10 August 1972 and his DD Form 214 reflects the appropriate narrative reason and authority in item 11c.   

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

3.  It appears his chain of command determined his overall military service did not meet the standards for either an honorable or general discharge as defined in Army Regulation 635-200 and appropriately characterized his service as undesirable.  

4.  He contends that his ability to serve was impaired by his youth and immaturity, and his deprived background.  However, these issues are not sufficiently mitigating to warrant relief in this case.  Additionally, his record is void of any evidence showing he was any less mature than other Soldiers of the same age who managed to serve honorably.  

5.  The applicant’s statements and letters of support regarding his post-service conduct and accomplishments are acknowledged.  However, these issues are also not sufficiently mitigating to warrant relief.  

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

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)                                         AR20100025211





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ABCMR Record of Proceedings (cont)                                         AR20100025211



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