IN THE CASE OF:	  

		BOARD DATE:	    30 August 2011

		DOCKET NUMBER:  AR20110003493 


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 being arrested for a felony due to trying to buy marijuana resulted in him not being able to handle firearms and he believes that a general discharge would have been more appropriate.  He also states that it would help him to receive the medical treatment he so badly needs at this time.

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 enlisted in the Regular Army on 4 September 1969 for a period of 3 years and training as a field wireman.  He completed one-station unit training at Fort Polk, Louisiana and on 4 January 1970 he went absent without leave (AWOL) and remained absent until he was returned to military control at Fort Jackson, South Carolina on 13 September 1970, where charges were preferred against him.

3.  On 12 November 1970, he was convicted pursuant to his plea by a special court-martial of being AWOL from 4 January to 13 September 1970.  He was sentenced to confinement at hard labor for 5 months (suspended for 5 months) and a forfeiture of $60.00 pay for 4 months.

4.  The applicant was transferred to Fort Bragg, North Carolina on 26 November 1970.  In January 1971, nonjudicial punishment (NJP) was imposed against him for being AWOL from 14 January to 16 January 1971.  On 25 January 1971, NJP was imposed against him for breaking restriction.

5.  On 8 February 1971, the suspended portion of his sentence to confinement at hard labor was vacated and he was transferred to the Confinement Training Facility at Fort Riley, Kansas to serve his confinement. 

6.  He completed his confinement period and was transferred to Fort Carson, Colorado on 24 June 1971.  On 20 September 1971, NJP was imposed against him for being AWOL from 1 September to 13 September 1971.

7.  On 13 December 1971, he was transferred to Fort Hood, Texas and on
26 January 1972, NJP was imposed against him for failure to go to his place of duty.

8.  On 7 February 1972, the applicant underwent a psychiatric evaluation and the examining psychiatrist opined that he was an immature and impulsive individual who was unwilling to adapt to Army discipline.  He further opined that his present use of drugs was a means of escapism so that he would not have to cope with issues.  He recommended that the applicant be discharged from the service.

9.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Des Moines, Iowa in 1994.  However, his records do contain a duly-authenticated DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that he was discharged under other than honorable conditions on 10 April 1972 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 had served 1 year, 7 months, and 13 days of total active service and had 360 days of lost time due to AWOL and confinement.  At the time of his discharge he acknowledged that he had been briefed on the procedures for applying to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. 

10.  There is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  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, in pertinent part, 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.

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.
 
DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.
  
2.  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 and the board does not upgrade discharges simply for the purpose of qualifying individuals for benefits.









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)                                         AR20110003493



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ABCMR Record of Proceedings (cont)                                         AR20110003493



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