IN THE CASE OF:
BOARD DATE: 27 October 2011
DOCKET NUMBER: AR20110006418
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, in effect, his undesirable discharge be upgraded to general.
2. He states his age, immaturity, substance abuse, and mental health issues during his military service contributed to his undesirable discharge.
3. He does not provide any additional evidence.
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 9 January 1968 for a period of 3 years at age 18 years and 1 month.
3. Headquarters, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, GA, General Court-Martial Order Number 77, dated 21 May 1968, shows he was found guilty of wrongfully possessing 7.39 grams of marijuana.
4. Headquarters, Special Troops, Fort Sam Houston, TX, Special Court-Martial Order Number 178, dated 23 July 1969, shows he was found guilty of being absent without leave from 8 to 31 March 1969.
5. The facts and circumstances pertaining to the applicant's discharge proceedings under the provisions of Army Regulation 635-212 (Personnel Separations Discharge Unfitness and Unsuitability) were not contained in his military records.
6. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions on 8 August 1969 with issuance of an Undesirable Discharge Certificate. The reason and authority for discharge was listed as Army Regulation 635-212 with a separation program number (SPN) 28B (unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities). He completed 8 months and 26 days of total active service with 309 days of lost time.
7. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
8. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unsuitability and unfitness. Paragraph 6 provided that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion, including but not limited to lewd and lascivious acts, indecent exposure, or indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or 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 (Active Duty Enlisted Administrative Separations), paragraph 3-7, 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. Although a copy of the applicant's discharge package is not in his file, the presumption of regularity must be applied. The applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. He failed to submit evidence that would satisfy this requirement.
2. His record of service included two court-martial convictions and 309 days of lost time. Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service as unsatisfactory. Therefore, there is no basis to upgrade the applicant's 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) AR20110006418
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ABCMR Record of Proceedings (cont) AR20110006418
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