IN THE CASE OF:	  

		BOARD DATE:	    21 June 2011

		DOCKET NUMBER:  AR20100026645 


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, in effect, upgrade of his undesirable discharge (UD).

2.  He states his recent appeal was denied by the Army Discharge Review Board (ADRB) based on the 15-year statute of limitations.  The punishment has out lasted and outweighed the crime and should be overturned.  The Board should grant his request for an upgrade of his UD based on his overall service and not just the incident that occurred.

3.  He provides:

* his DD Form 214 (Report of Separation from Active Duty)
* a denial letter from the ADRB
* a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 18 January 1967 for 2 years in pay grade E-1.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 14 May 1967, he accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for 1 day.

4.  He served in Vietnam from 17 July 1967 to 14 June 1968.  

5.  He was advanced to pay grade E-3 on 25 July 1967.

6.  On 17 October 1967, he was convicted by a special court-martial for one specification of being AWOL for 1 day.  He was sentenced to a forfeiture of $64.00 pay for 1 month, reduction to pay grade E-1, and confinement at hard labor for 1 month.  The sentence was approved on 20 October 1967 and ordered duly executed.

7.  He was reduced to pay grade E-1 on 20 October 1967.

8.  On 8 February 1968, he was convicted by a special court-martial of one specification each of being AWOL from 19 November to 31 December 1967 and missing a company movement.  He was sentenced to a forfeiture of $68.00 pay per month for 6 months, reduction to pay grade E-1, and confinement at hard labor for 6 months.  The sentence was approved on 14 March 1968 and ordered duly executed.  On 25 March 1968, the unexecuted portion of his sentence to confinement at hard labor for 6 months was suspended until 14 May 1968.

9.  On 5 May 1968, he again accepted NJP under Article 15, UCMJ, for being AWOL from 20 to 29 April 1968.

10.  On 20 May 1968, the applicant's company commander notified the applicant of the proposed action to effect his separation from the Army under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.

11.  On 20 May 1968, after consulting with counsel, he acknowledged the proposed separation action.  He waived his rights to consideration of his case by or personal appearance before a board of officers.  He further elected not to submit a statement in his own behalf.  He acknowledged that he may expect to encounter substantial prejudice in civilian life if a general discharge is issued to him.  He also understood that as the result of a UD, he may be ineligible for any or all benefits as a veteran under both Federal and State laws.

12.  On 20 May 1968, the applicant's company commander recommended the applicant be separated from the Army under the provisions of Army Regulation 635-212 for unfitness with a UD.  The company commander stated the discharged was recommended because of repeated incidents of insubordination to officers and noncommissioned officers and repeated incidents subjecting him to punitive action as evidenced by the fact that the applicant had been convicted by two different special courts-martial and one Article 15 for different specifications of AWOL.

13.  On 30 May 1968, the applicant's battalion commander recommended approval of the applicant's separation with the issuance of a UD.

14.  In May 1970, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the issuance of an Undesirable Discharge Certificate.

15.  On 18 June 1968, he was discharged from active duty in pay grade E-1 under the provisions of Army Regulation 635-212, for unfitness, with a UD.   He was completed 1 year, 5 months, and 1 day of total active service, with 122 days of time lost.

16.  On 24 May 1977, the ADRB upgraded his UD to a general discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP).  A DD Form 215 (Correction to DD Form 214) was issued on 14 August 1978 that indicated his discharge was reviewed under the provisions of Public Law 95-126 and a determination was made that characterizations of service was warranted under the provisions of the DOD SDRP on 4 April 1977.

17.  On 26 July 1978, the ADRB determined that the mitigating factors cited by the board which resulted in upgrade under the DOD SDRP were not sufficient to warrant upgrade under uniform standards; therefore, the board denied affirmation.

18.  On 28 August 1978, the Department of the Army, Office of The Adjutant General, advised the applicant that the previous upgrading of his discharge had been re-reviewed by the ADRB as required by Public Law 95-126.  As a result of that review, the board determined that he did not qualify for upgrading under the new uniform standards for discharge review.  Accordingly, his upgraded discharge under the DOD SDRP was not affirmed.

19.  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 of the regulation 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.

20.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 3-7a, states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally meets 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded has been carefully considered.  However, the evidence of record shows he enlisted for
2 years on 18 January 1967.  While serving in Vietnam he had two special courts-martial and one Article 15.  In May 1968, his company commander stated 
he was recommending the applicant's discharge for unfitness due to repeated incidents of insubordination to officers and noncommissioned officers and repeated incidents subjecting him to punitive action.  

2.  The evidence of record also shows after consulting with counsel, he acknowledged the proposed separation action for unfitness.  He waived his opportunity to appear before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged the effects of the issuance or a general or a UD.  His battalion commander recommended his separation with a UD.  He was discharged accordingly on 18 June 1968.

3.  On 14 May 1977, the ADRB upgraded his UD to a general discharge under the DOD SDRP.  On 26 July 1978, the ADRB determined that the mitigating factors which resulted in an upgrade under the DOD SDRP were not sufficient to warrant upgrading under uniform standards.  Accordingly, his upgraded discharged under the DOD SDRP was not affirmed.  He was notified of this action on 28 August 1978.

4.  He has provided no evidence or argument to show his UD should be upgraded to a fully honorable discharge.  His military records contain no matter upon which an upgrade should be granted.  It appears his failure to meet acceptable standards for retention diminished the quality of his service below that meriting a fully honorable discharge.

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

6.  In view of the foregoing, there is no basis for granting him the requested relief.

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)                                         AR20100026645



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ABCMR Record of Proceedings (cont)                                         AR20100026645



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