IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110004620 


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 general discharge to an honorable discharge.

2.  He states he was in his twenties while in the service and he had a drinking problem, but he does not have a problem now.  He currently suffers from numerous medical conditions.

3.  He provides no additional documents.

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 26 July 1946 and he enlisted in the Regular Army on 19 August 1965 at 19 years of age.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice, on five occasions for:

* failing to return an overdue Post Library book after being reminded on four different occasions
* telling his first sergeant that he had returned the book; however, it was revealed that the book had not been returned
* being absent from his unit 
* failing to obey a lawful order
* resisting lawful apprehension by an armed forces policeman
* wearing an improper uniform

4.  His disciplinary record also shows he was convicted by four separate special courts-martial for being absent without leave (AWOL) during the periods:

* 9 to 19 December 1965
* 10 to 16 August 1967
* 21 to 22 August 1967 [his DA Form 20 (Enlisted Qualification Record) and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) show this period of AWOL as 18 to 22 August 1967]
* 9 November 1967 to 8 February 1968
* 1 to 21 July 1968
* 1 to 25 August 1968
* 2 to 8 September 1968

5.  His DA Form 20 also shows he was AWOL from 2 to 8 Aug 1967; however, his service record does not include any nonjudicial punishment for this period of AWOL.

6.  His discharge packet is not available for review.  However, his DD Form 214 shows he was discharged on 7 February 1969 under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) due to unfitness - frequent incidents of a discreditable nature with military authorities.  He was issued an Undesirable Discharge Certificate.  At the time of discharge, he had completed 2 years, 5 months, and 18 days of creditable active service with 266 days of time lost.


7.  On 23 May 1977, the Army Discharge Review Board (ADRB) upgraded his undesirable discharge to a general under honorable conditions discharge under the provisions of the Department of Defense (DOD) Special Discharge Review Program (SDRP).  On 18 August 1978, the ADRB determined he did not qualify for upgrading under the new uniform standards for discharge review and, as such, his upgraded discharge under the DOD SDRP was not affirmed.

8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

9.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.

   a.  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.

   b.  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.

10.  The SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.”  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the 


contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused from completing alternate service in accordance with PP 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/
AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.

11.  Public Law 95-126 provided in pertinent part for a “Relook Program.”  All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards.  Two of the principal features of Public Law 95-126 were: 
(1)  the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits.  Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2)  prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was in his twenties during his period of service and he had a drinking problem are acknowledged.  However, these issues are not sufficiently mitigating to warrant relief in this case.

2.  His service record shows he received five Article 15s and four special courts-martial.

3.  The ADRB upgraded the applicant’s undesirable discharge to a general discharge under the SDRP.  The applicant’s discharge was reviewed under the Public Law 95-126 and his discharge upgrade was not affirmed.


4.  Based on his record of substandard performance and/or indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This performance rendered his service unsatisfactory.  Therefore, the applicant is not entitled to the requested relief.

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)                                         AR20110004620



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ABCMR Record of Proceedings (cont)                                         AR20110004620



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