IN THE CASE OF:	  

		BOARD DATE:	    18 August 2011

		DOCKET NUMBER:  AR20110000408 


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 a general discharge.

2.  He states when President Nixon was impeached, he was told that any Soldier who did not receive a dishonorable discharge would get their discharge upgraded to a general discharge.  He also states he had just turned 17 years old when his father made him enlist in the Army.  While in the Army he was given illegal drugs for the first time and did not know how to stop taking the drugs.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 on 29 July 1969 for a period of
2 years.

3.  Special Court-Martial Order Number 46, issued by Headquarters,
12th Support Brigade, Fort Bragg, NC, dated 18 June 1970, shows the applicant was found guilty of two specifications of being absent without leave (AWOL) from 17 March 1970 to 19 March 1970 and from 4 April 1970 to 19 April 1970.

4.  On 6 July 1970, nonjudicial punishment under the provisions of Article 15, Uniform Code of Military justice (UCMJ) was imposed against him for departing Fort Bragg without signing out of his company and for failing to go at the time prescribed to his appointed place of duty.

5.  Special Court-Martial Order Number 82, issued by Headquarters, 11th Military Police Group, Fort Bragg, dated 1 October 1970, shows the applicant was found guilty of being AWOL from 11 July 1970 to 19 July 1970.

6.  On 5 November 1970, he underwent a mental status evaluation and he was determined to be mentally cleared for separation by the examining psychiatrist.  The psychiatrist stated there were no disqualifying mental defects sufficient to warrant disposition through medical channels.  He further stated the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

7.  A complete copy of the applicant's discharge packet is not contained in the available record.  However, his record contains the unit commander's recommendation for discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness, dated 10 November 1970.  It also contains the separation authority's approval, dated 18 November 1970, wherein he directed the issuance of an Undesirable Discharge Certificate.

8.  The DD Form 214 he was issued at the time shows he was discharged on
20 November 1970 with an undesirable discharge.  He completed 11 months and 8 days of total active service with 134 days of time lost.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness.  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.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

12.  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.  

13.  The Department of Defense (DOD) Special Discharge Review Program (SDRP) was directed in a memorandum from the Secretary of Defense in 1977.  The SDRP stipulated that all former service members who received undesirable discharges during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP.  It further indicated that members who received an undesirable discharge during the Vietnam era would have their discharges upgraded if they met one of the following criteria:  wounded in combat in Vietnam, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia or in the Western Pacific in support of operations in Southeast Asia, completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974, or received an honorable discharge from a previous tour of military service.

DISCUSSION AND CONCLUSIONS:

1.  Although a complete copy of the applicant's discharge packet for unfitness is not contained in his available record, the presumption of regularity must be applied.  He must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  He has failed to submit evidence that would satisfy this requirement.

2.  Additionally, his discharge was based on multiple incidents of misconduct commencing with two special courts-martial and an Article 15 which were all issued within a 4-month period.  Clearly his service was marred by multiple records of misconduct which warranted his separation under the provisions of Army Regulation 635-212 for unfitness.  

3.  Discharges are not automatically upgraded.  The applicant may be referring to the SDRP.  However, he would not have met the eligibility criteria to his undesirable discharge upgraded to a general discharge under the SDRP, and his record of service does not warrant upgrading his discharge now.

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)                                         AR20110000408



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ABCMR Record of Proceedings (cont)                                         AR20110000408



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