IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100029561 


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 to an honorable discharge.

2.  The applicant states that he was married at the time and had a lot of family problems.

3.  The applicant provides no additional documents with 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 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 married at the time he volunteered for induction in Jacksonville, Florida on 3 December 1968.  He was transferred to Fort Benning, Georgia to undergo his training.
3.  On 20 January 1969, while assigned to a special training company,  nonjudicial punishment (NJP) was imposed against him for striking another Soldier in the mouth with his fist.

4.  He completed all of his training at Fort Benning and remained assigned to Fort Benning for duty as a bridge helper in an engineer company.

5.  The applicant went AWOL on 28 October 1969 and remained absent until he was returned to military control at Fort Stewart, Georgia on 27 December 1969 and charges were preferred against him for the AWOL offense. 

6.  On 2 January 1970, he was convicted by a special court-martial at Fort Stewart of being absent without leave (AWOL) from 28 October to 26 December 1969.  He was subsequently reassigned to Fort Stewart for duty.

7.  On 3 February 1970, NJP was imposed against him for being AWOL from 30 January to 3 February 1970.

8.  On 19 April 1970, NJP was imposed against him for being AWOL from 12 April to 19 April 1970.

9.  On 13 August 1970, he was convicted by a special court-martial of being AWOL from 18 May to 28 June 1970.

10.  On 11 January 1971, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-212 for unfitness due to his frequent involvement in incidents of a discreditable nature with civil or military authorities.  He cited the applicant’s conduct and his disciplinary record as the basis for his recommendation.

11.  On 13 January 1971, after consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

12.  The appropriate authority (a major general) approved the recommendation for discharge on 25 January 1971 and directed that he be furnished an Undesirable Discharge Certificate.

13.  Accordingly, he was discharged under other than honorable conditions on 29 January 1971 under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil and military authorities.  He had served 1 year, 4 months, and 1 day of active service and had 243 days of lost time due to AWOL and confinement.

14.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge.  There is also no evidence in his records to show that he sought the assistance of his chain of command to resolve any problems he was having.

15.  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, in pertinent part, 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.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  

17.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors, which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted.  However, the offenses committed by the applicant were too numerous and too serious and his overall record of service is too undistinguished for equitable relief to be appropriate, especially given the lack of mitigating circumstances at the time.  His service simply does not rise to the level of honorable or under honorable conditions.



4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100029561





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ABCMR Record of Proceedings (cont)                                         AR20100029561



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