IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110003918 


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 an upgrade of his discharge under conditions other than honorable to an honorable discharge.

2.  The applicant states:

* he had no previous disciplinary issues prior to his discharge
* he was 21 years old in a country he had never been in
* he got a German national pregnant and she miscarried
* they were both traumatized and he was not thinking clearly
* he was young and naive

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a two-page excerpt from his discharge packet.

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, and 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 inducted into the Army of the United States on 19 September 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 76A (supply clerk).  The highest rank he attained while serving on active duty was private/E-2.

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:

* 3 March 1970, for failing to obey a lawful order to report for duty on 2 March 1970
* 27 July 1970, for failing to report to his appointed place of duty on three occasions on 15 July 1970 and for failing to obey a lawful order on 24 July 1970
* 13 October 1970, for absenting himself from duty without authority with the intent of avoiding a field exercise on 6 October 1970
* 22 December 1970, for absenting himself from duty without authority on 16 December 1970
* 29 December 1970, for failing to report to duty on 26 December 1970 and for remaining absent from his unit without authority during the period 24 through 28 December 1970
* 25 January 1971, for failing to report to his appointed place of duty on 23 January 1971

4.  The applicant was convicted by a special court-martial on 6 April 1971 of the following:

* 17 February 1971, absenting himself from his unit without authority and remaining absent until 25 February 1971
* 22 March 1971, absenting himself from his unit without authority and remaining absent until 26 March 1971
* 12 April 1971, absenting himself from his unit without authority and remaining absent until 15 May 1971

5.  On 22 September 1971, the applicant's commander submitted a U.S. Army Europe Form 3133 (Unit Commanders Report for Psychiatric Examination) recommending his discharge from military service as soon as possible.  Medical records show the applicant was given a psychiatric evaluation and was found to be mentally responsible, able to distinguish right from wrong, and mentally capable of understanding and participating in board proceedings.

6.  On 5 October 1971, the applicant was notified of the commander's intent to initiate separation action against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), paragraph 6a(1).  His commander and legal counsel advised him of his rights to have his case considered by a board of officers, to a personal appearance before a board, to submit statements on his own behalf, to representation by his appointed council, and to waive any of his rights in writing.  The applicant waived his rights and acknowledged he understood the issuance of an undesirable discharge under conditions other than honorable may deprive him of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 28 October 1971, the applicant was given another mental status evaluation.  The medical officer reported the applicant was mentally responsible, was able to distinguish right from wrong, and was mentally capable of understanding and participating in board proceedings.

8.  On 10 November 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212, paragraph 6a(1), and directed his discharge for unfitness.  On 19 November 1971, the applicant was discharged under conditions other than honorable.  His DD Form 214 shows he completed a total of 1 year, 10 months, and 12 days of creditable active military service and accrued 111 days of lost time.

9.  There is no evidence in the available records that shows the applicant requested assistance through his chain of command or other appropriate official for difficulties with family matters or adjusting to living in a foreign country.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-212, paragraph 6a(1), in effect at the time, provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant stated he had no previous disciplinary issues prior to his discharge.  However, his record reveals a disciplinary history including acceptance of NJP under the provisions of Article 15 of the UCMJ on six occasions and a conviction by special court-martial prior to his separation proceedings.

3.  The applicant stated he was 21 years old in a country he had never been in and he was young and naïve.  However, no evidence indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

4.  The applicant stated he got a German national pregnant and they were traumatized by her miscarriage which is why he was not thinking clearly.  However, medical records show he underwent two psychiatric evaluations and was found mentally responsible, able to distinguish right from wrong, and mentally capable on both occasions.

5.  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 the applicant is not entitled to either 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 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)                                         AR20110003918



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ABCMR Record of Proceedings (cont)                                         AR20110003918



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