IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20110000560 


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 a general discharge.

2.  The applicant states that he desires his discharge to be upgraded to a general discharge because he had a brain tumor operation and can no longer work.  He goes on to state that he needs the help his veterans benefits would provide and states that he served for 3 years and was sent to Alaska.  However, he wanted to go to Vietnam and the Army would not let him go because he had a brother and step-brother there.  He also states that he needs help for the medications he is taking. 

3.  The applicant provides a copy of 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 in Boston, Massachusetts under the basic buddy plan on 29 July 1968, for a period of 3 years and training as a construction utilities worker.  He completed his basic training at Fort Jackson, South Carolina and his advanced individual training at Fort Leonard Wood, Missouri.  The applicant’s records show that he went absent without leave (AWOL) from 6 January to 25 January 1969 and 7 February to 13 February 1969.  However, the record is silent as to any punishment imposed for those offenses.

3.  The applicant was transferred to Fort Richardson, Alaska on 18 March 1969 for assignment to a construction engineer company.  He was advanced to the pay grade of E-3 on 28 April 1969.

4.  On 20 May 1969 nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order from a superior noncommissioned officer (NCO).

5.  On 9 July 1969 NJP was imposed against the applicant for wrongfully appropriating a 2 1/2  ton truck.

6.  He departed Alaska on 29 July 1969 after only 4 months for assignment to Vietnam.  However, for reasons not explained in the available records, he was diverted to Fort Devens, Massachusetts.  He arrived at Fort Devens in September 1969.

7.  On 8 October 1969 NJP was imposed against the applicant for failure to go to his place of duty.

8.  On 10 November 1970 he was convicted by a special court-martial of being AWOL from 9 April to 5 May 1970, from 14 May to 2 July 1970, from 9 July to 16 July 1970, from 17 July to 24 August 1970, and for breaking arrest on 17 July 1970.  He was sentenced to restriction for 60 days and a forfeiture of pay ($50.00 per month) for 6 months. 



9.  On 17 December 1970 NJP was imposed against him for being AWOL from 1 December to 14 December 1970.

10.  The applicant again went AWOL from 22 December to 30 December 1970, from 8 January to 12 January 1971, from 19 January to 22 January 1971, from 21 January to 10 February 1971, and from 11 February to 24 February 1971.

11.  Meanwhile, on 11 January 1971 the applicant’s commander initiated action to discharge the applicant 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 and military authorities.  He cited the applicant’s repeated periods of AWOL, his failure to respond to repeated counseling sessions, and his habitual habit of shirking his duties as the basis for his recommendation.

12.  The applicant underwent a psychiatric evaluation and was found to be mentally responsible.

13.  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.

14.  The appropriate authority (a brigadier general) approved the recommendation for discharge on 16 February 1971 and directed that he be furnished an Undesirable Discharge Certificate.

15.  Accordingly, he was discharged under other than honorable conditions on 24 February 1971, under the provisions of Army Regulation 635-212 for unfitness due to his frequent involvement in frequent incidents of a discreditable nature with civil and military authorities.  He had served1 year, 4 months, and 22 days of total active service and he had 429 days of lost time due to AWOL. 

16.  On 14 December 1978 he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to fully honorable.  He contended at that time that he deserved an honorable discharge due to his good time and because his discharge was hindering his profession as a union carpenter and causing him social embarrassment.  After reviewing all of the available evidence in his case, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request on 30 May 1980.

17.  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.

18.  Army Regulation 635-200 sets forth the basic policy 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.

19.  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.  

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.  His service simply does not rise to the level of honorable or under honorable conditions.

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)                                         AR20110000560





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ABCMR Record of Proceedings (cont)                                         AR20110000560



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