IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110003486 


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.  The applicant states he was not suitable for military service and had a felony conviction prior to his induction and, while he could not enlist, he was inducted anyway.  Since he was in the service less than 6 months, he believes his discharge was mishandled.

3.  The applicant provides:

* a two-page handwritten letter explaining his application
* a summary of his adult incarceration in 1989
* a copy of his assessment by a mental health center
* 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 was born on 28 July 1947 and was inducted into the Army of the United States in Boston, Massachusetts, on 22 July 1966.  At the time of his induction he indicated he had been convicted of breaking and entering and larceny in Charlotte, North Carolina, on 13 June 1962 and sentenced to 
3-to-5 years.  There were no court records available as the applicant was a juvenile at the time of the offense.  Accordingly, he was accepted for induction.

3.  He completed his basic training at Fort Campbell, Kentucky, and his advanced individual training as a cannoneer at Fort Sill, Oklahoma before being transferred to Vietnam on 23 December 1966.  On 1 January 1967, a week after his arrival, he went absent without leave (AWOL) and remained absent until 30 January 1967.

4.  On 5 February 1967, the applicant was convicted pursuant to his pleas by a special court-martial of AWOL from 1 January to 30 January 1967 and 1 February to 2 February 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

5.  On 26 February 1967, the applicant was apprehended in Cong Hoa Circle, Saigon, wearing first lieutenant bars and military police insignia.  He was tearing up and wrecking stores in the circle.

6.  On 26 April 1967, he was convicted pursuant to his plea by a special court-martial of escaping from lawful custody.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

7.  On 2 October 1967, he was convicted pursuant to his plea by a special court-martial of escaping lawful custody.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

8.  On 27 October 1967, 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 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He cited the applicant's disciplinary record and his total disregard for authority as the basis for his recommendation.

9.  After consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

10.  On 10 February 1968, the appropriate authority (a lieutenant general) approved the recommendation for discharge and directed that the applicant be furnished an Undesirable Discharge Certificate.

11.  He departed Vietnam on 21 February 1968 and was transferred to Fort Lewis, Washington, where he was discharged under other than honorable conditions for unfitness due to frequent involvement in incidents of a discreditable nature with civil and military authorities under the provisions of Army Regulation 635-212 on 27 February 1968.  He completed 5 months and 19 days of active service and accrued 407 days of lost time due to AWOL and confinement.

12.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided that members who exhibited frequent involvement in incidents of a discreditable nature with civil and/or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 contention has been considered.  However, his repeated misconduct and his undistinguished record of service are not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply did not rise to the level of a general discharge.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.  There were no regulatory provisions for differential treatment based on time in service.  In addition, the only reason the applicant completed less than 6 months of creditable service at the time of his separation was because of his frequent AWOL's.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

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 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)                                         AR20110003486



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ABCMR Record of Proceedings (cont)                                         AR20110003486



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