IN THE CASE OF:
BOARD DATE: 21 April 2011
DOCKET NUMBER: AR20100025234
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 he:
* was absent without leave (AWOL) and he used marijuana
* was in Vietnam 15 months
* was young and did some things due to poor judgment, but he does not believe those things should be held against him after all of these years
* has not been in any kind of trouble since he was discharged
3. The applicant provides four character reference letters in support of his application.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. He was born on 21 March 1949 and enlisted in the Regular Army on
19 January 1968 for a period of 3 years.
3. On 17 April 1968, while in advanced individual training, nonjudicial punishment (NJP) was imposed against him for failing to go at the prescribed time to his place of duty.
4. He completed his training and was awarded military occupational specialty 71B (Clerk Typist).
5. He arrived in Vietnam on 25 June 1968.
6. On 16 February 1969, NJP was imposed against him for using disrespectful language.
7. On 4 June 1969, he was convicted by a special court-martial of two specifications of being AWOL, from 24 March 1969 to 9 April 1969 and 13 April 1969 to 1 June 1969. He was sentenced to confinement at hard labor for
6 months, to forfeit $73.00 pay for 6 months, and to be reduced to E-1. On
15 June 1969, the convening authority approved the sentence but suspended that portion of the sentence adjudging confinement at hard labor for 6 months.
8. He departed Vietnam on 1 September 1969.
9. On 7 January 1970, NJP was imposed against him for failing to go at the prescribed time to his place of duty.
10. Records show he was AWOL for 1 day on 6 April 1970.
11. On 4 May 1970, NJP was imposed against him for being AWOL for 2 hours and leaving his appointed place of duty without authority.
12. On 18 June 1970, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities with an undesirable discharge. The unit commander based his recommendation for separation on the applicant's inability to perform his assigned duties in a satisfactory manner, his nonchalant attitude, and incidents which are of a discreditable nature. He recommended the applicant appear before a board of officers.
13. On 26 June 1970, NJP was imposed against him for wrongfully appearing in public in his fatigue uniform.
14. On 18 August 1970, a board of officers convened and found that he was undesirable for further retention in the military service because of an established pattern of frequent incidents of a discreditable nature with military authorities and recommended that he be discharged from the service under the provisions of Army Regulation 635-212 with an undesirable discharge. On 31 August 1970, the separation authority approved the findings and directed that the applicant be issued an undesirable discharge.
15. Records show he was AWOL from 22 August to 23 August 1970.
16. He was separated with an undesirable discharge on 4 September 1970 under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil or military authorities. He had served 2 years, 5 months, and 8 days of creditable active service with 68 days of lost time.
17. He provided four character reference letters from family members and a friend. They attest the applicant:
* is a decent person
* has been gainfully employed for the majority of his life
* has no law infractions
* is a respectable citizen
18. On 14 July 1972, the Army Discharge Review Board denied the applicant's request for an honorable discharge.
19. 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 were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.
20. 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.
21. 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. He contends he was young and did some things due to poor judgment. However, age is not a sufficiently mitigating factor. He was almost 19 years old when he enlisted and he successfully completed training.
2. Good post-service conduct and the passage of time are normally not a basis for upgrading a discharge.
3. The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.
4. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
5. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.
6. His record of service included five NJPs, one special court-martial conviction, and 68 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. His record of service is insufficiently meritorious to warrant an honorable or general 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) AR20100025234
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100025234
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