BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110000711 


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, an upgrade of his discharge. 

2.  The applicant states his discharge was due to being absent without leave (AWOL).  He was AWOL in search of employment.  His records had been lost, affecting his financial and medical benefits.  The mistakes he made as a 19-year old kid were compounded by mistakes made by the Army when "they' lost his military records in transport. 

3.  The applicant 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's records show he was born on 27 April 1953 and he enlisted in the Regular Army at 18 years of age on 29 July 1971.  He held military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  The highest rank he attained during his military service was private/E-2. 

3.  The applicant's records also show subsequent to completion of MOS training, he was assigned to Fort Polk, LA.  His records further show he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 13 January 1972, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being AWOL from 13 December 1971 to 12 January 1972.  

5.  On 22 February 1972, he again departed his unit in an AWOL status and on 22 March 1972, he was dropped from the rolls as a deserter.  He returned to military control on 24 March 1972.

6.  While in an AWOL/deserter status, his commander initiated a Bar to Reenlistment Certificate against him.  The bar was ultimately approved on 27 March 1972.

7.  On 18 April 1972, he was convicted by a special court-martial of two specifications of AWOL from 22 February to 22 March 1972 and 22 to 23 March 1972.  The court sentenced him to confinement at hard labor for 4 months and a forfeiture of $58.00 pay per month for 4 months.  The convening authority approved the sentence on 19 April 1972.

8.  On 1 September 1972, he again departed his unit in an AWOL status and on 1 October 1972, he was again dropped from the rolls as a deserter.  He returned on 3 October 1972.

9.  On 17 October 1972, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.  He recommended an Undesirable Discharge Certificate.

10.  On 18 October 1972, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He also acknowledged he under he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He waived consideration of his case by a board of officers, he waived a personal appearance before a board of officers, and he declined to make a statement in his own behalf.

11.  Subsequent to this acknowledgement, the immediate commander initiated separation action against him under Army Regulation 635-212 for unfitness.  The immediate commander recommended an Undesirable Discharge Certificate.  The immediate commander stated that the applicant's mental status evaluation report showed no mental condition that warranted discharge through medical channels. 

12.  On 19 October 1972, his intermediate commander recommended approval of the separation with the issuance of an Undesirable Discharge Certificate.

13.  The separation authority's approval memorandum is not available for review; however, his records contain discharge orders and a duly-constituted DD Form 214 that shows he was discharged on 3 November 1972 under the provisions of Army Regulation 635-212 by reason of unfitness with a character of service of under other than honorable conditions.  He completed 8 months and 24 days of creditable active service and he had 191 days of lost time.

14.  There is no indication he petitioned the Army Discharge Review Board within that board's 15-year statute of limitations. 

15.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

16.  Army Regulation 635-200 (Personnel Separations) 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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  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 evidence of record shows the applicant displayed habits and traits of character manifested by frequent incidents of a discreditable nature with military authorities as confirmed by his continuous AWOL and court-martial conviction.  Accordingly, his chain of command initiated separation action against him.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  The applicant was 18 years of age at the time of his enlistment.  However, there is no evidence that he was any less mature than other Soldiers who successfully completed their terms of service or that his misconduct was caused by his age.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

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)                                         AR20110000711



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ABCMR Record of Proceedings (cont)                                         AR20110000711



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