IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100029183 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  He states:

* he was not a good candidate for military life based on previous life events
* he was probably suffering from attention deficit disorder
* he went absent without leave (AWOL) numerous times and he received a discharge under conditions other than honorable
* his problems started in school and nothing or no one was able to change his behavior
* he has changed his life after a bout with alcoholism to become a successful painter
* he has three daughters and he has never been accused of any crime

3.  He provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a self-authored statement
* two character reference letters

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 of the United States on 2 August 1967.

3.  His record documents no acts of valor or service warranting special recognition.

4.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for AWOL from 22 October to 21 November 1968.

5.  The applicant's DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record) - Record of Court-Martial Conviction) lists the following court-martial convictions:

* Summary Court-Martial on 15 November 1967 for being AWOL from 17 October to 4 November 1967
* Special Court-Martial on 20 February 1968 for being AWOL from
7 January to 2 February 1968
* Special Court-Martial on 9 August 1968 for being AWOL from 5 July to
11 July 1968 and from 16 July to 24 July 1968
* Special Court-Martial on 2 April 1969 for being AWOL from 10 January to 7 March 1969

6.  On 3 June 1969, the applicant was advised by his immediate commander of his recommendation to separation him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.

7.  On 5 June 1969, the applicant acknowledged he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration of his case by a board of officers and waived a personal appearance.  The applicant indicated he was submitting statements in his own behalf and that he waived representation by counsel.  The applicant acknowledged that as a result of the issuance of an undesirable discharge he could expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged 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 laws, and that he may expect to encounter substantial prejudice in civilian life.

8.  On 18 June 1969, his immediate commander subsequently initiated separation action against him under the provisions of Army Regulation 635-212 for unfitness with an Undesirable Discharge Certificate.  The immediate commander stated the discharge was recommended because of frequent incidents of a discreditable nature with military authorities.

9.  On 15 July 1969, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 due to unfitness with issuance of an Undesirable Discharge Certificate.  On 23 July 1969, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 9 months and 4 days of total active service with 438 days of time lost.

10.  On 29 June 1979, the Army Discharge Review Board disapproved his request for a change in the type and nature of his discharge.

11.  He provided two character reference letters which state he has shown a desire to improve, is dependable, and is a unique, caring individual.

12.  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.
13.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 3-7a, currently in effect, 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.

14.  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 record shows he received one Article 15, one summary court-martial, and three special courts-martial convictions.  The evidence of record shows an extensive amount of lost time due to AWOL.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for unfitness.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

3.  His post-service conduct is noteworthy; however, the ABCMR does not upgrade discharges based on the passage of time and post-service conduct alone.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100029183



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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