IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110005965 


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 undesirable discharge (UD).

2.  The applicant states:

   a.  he was told he would receive a general, under honorable conditions discharge (GD);
   
   b.  he did his best to conform to all wishes and no matter how hard he tried, he was consistently treated like dog meat by his company staff which seemed to be because he was from Los Angeles (LA);
   
   c.  he suffered verbal abuse and was called "that nigga [sic] from LA";
   
   d.  one day after he was roughed up by a sergeant who snatched off his glasses, scratching his face, he lost control and began to verbally vent his anger resulting in a 7-day stay in the guard house;
   
   e.  he subsequently received his company commander's approval for a reassignment, he cleared the post being unable to secure a flight, and he was returned to the stockade where he remained for nearly two months until he was processed for a discharge upon his release; and
   
   f.  he was shocked to learn he received the UD he did not deserve and the resulting hurt and betrayal has haunted him all these years since his discharge.
   
3.  The applicant provides a self-authored statement.

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 record shows he was inducted into the Army of the United States on 12 March 1968.  During his initial entry training, he was first reported absent without leave (AWOL) for 2 days, on 6 and 7 April 1968.

3.  His DA Form 20 (Enlisted Qualification Record) shows in Item 44 (Time Lost Under Section 972, Title 10, USC) he was reported absent fourteen times and accrued 243 days lost time between 6 April 1968 and 6 March 1969 as a result of being absent without leave (AWOL), dropped from the rolls (DFR), and six periods of confinement.

4.  Item 44 (Remarks) of the DA Form 20 shows the applicant escaped from confinement on 29 July 1968.  It also shows he was confined to civilian custody in Los Angeles on 25 September 1968, pending charges of burglary and automobile theft.

5.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 8 April 1968, for being AWOL, and on 25 June 1968, for failing to obey a lawful order.

6.  Pursuant to his pleas, the applicant was convicted by court-martial on four separate occasions for being AWOL during the periods indicated in the following orders:

* Special Court-Martial (SPCM) Order Number (#) 308, dated 18 July 1968 (18 May - 17 June 1968)

* SPCM Order #2267, dated 22 August 1968 (29 July - 2 August 1968)
* SPCM Order #2667, dated 10 October 1968 (16 - 25 September 1968)
* Summary Court-Martial (SCM) Order #47, dated 23 January 1969 (12 November 1968 - 13 January 1969)

7.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, there is a DD Form 214 on file that shows the applicant received a UD on 18 March 1969.  This document also shows that he completed a total of 4 months and 4 days of creditable active military service and accrued 243 days of time lost. 

8.  The applicant's DD Form 214 also shows he was separated under the provisions of Army Regulation 635-212, and that he was assigned a separation program number (SPN) of 28B, which indicates he was separated for unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).  

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an honorable discharge (HD) or general discharge (GD) under honorable conditions if warranted by the member's overall record of service; however, a UD was normally considered appropriate for members separating under these provisions.

11. Army Regulation 635-5-1 (Separation Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  The regulation in effect at the time of the applicant’s discharge stipulated that SPN 28B was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-212, for unfitness.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a, provides that an HD 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.
	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded because he did nothing to deserve it.  He was told he would receive a GD.  There is no evidence on file and the applicant has failed to provide any evidence to support this claim.

2.  The applicant's record is void of a separation packet that contains the specific facts and circumstances surrounding his separation processing for his final period of active duty service.  However, the record contains a properly constituted DD Form 214 that indicates he was discharged under the provisions of Army Regulation 635-212 and that he was assigned a SPN of 28B, which indicates he was separated for unfitness due to frequent involvement in incidents of a discreditable nature with civil and military authorities.  This document carries with it a presumption of government regularity in the discharge process.  In the absence of evidence to the contrary it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record clearly shows a disciplinary history that includes the applicant's four court-martial convictions for AWOL.  It also shows his twice acceptance of NJP and his AWOL record in which he accrued 243 days of lost time.  This record of misconduct clearly diminished the overall quality of his service below that of an HD or GD.

4.  Additionally, there is no evidence that shows the applicant suffered from or that he reported any acts of mistreatment against him to his chain of command during his military service.  Lacking any evidence to confirm the applicant met the regulatory criteria necessary for the receipt of a GD, there is no basis upon which to grant 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)                                         AR20110005965





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110005965



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1