IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110006609 


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 undesirable discharge to an honorable discharge.

2.  The applicant states a lieutenant, a captain, and a major took him to a room and told him they would not give him a court-martial and jail time if he signed discharge papers.  They also told him if he did this he could go home to his mother.

3.  The applicant provides a self-authored statement in support of 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 was inducted into the Army of the United States on 5 July 1966.  His DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 22 (Military Occupational Specialties) he was awarded military occupational specialty 57A (Duty Soldier) on 25 November 1966, and

	b.  item 33 (Appointments and Reductions) the entries:

GRADE
DATE OF RANK
PVT (private)/E-1
5 July 1966
PVT/E-2
5 November 1966
PVT/E-1
5 April 1967
PVT/E-2
30 May 1967
PVT/E-1
22 June 1967
PVT/E-2
22 July 1967
PVT/E-1
6 September 1967
3.  The applicant's disciplinary history includes a summary court-martial (SCM) on 24 April 1967, two special courts-martial (SPCM) on 20 June and 17 October 1967, respectively, and two records of accepting nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 6 January and 5 April 1967.  It also includes his accrual of 64 days of time lost during four separate periods of being absent without leave (AWOL) between
5 February 1967 and 7 September 1967; and two separate periods of confinement between 4 May 1967 and 17 July 1967.

4.  On 25 September 1967, the unit commander notified the applicant of his intent to recommend his discharge under the provisions of Army Regulation
635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness.

5.  On 26 September 1967, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and the rights available to him.  He requested that his case be considered by a board of officers.  He also elected not to submit a statement in his own behalf.

6.  On 25 October 1967, the unit commander submitted a recommendation for the applicant’s discharge for unfitness under the provisions of Army Regulation 635-212.  He cited the applicant’s habits of and actions contrary to those characteristics of a good Soldier.  As the basis for taking the separation action, the unit commander stated the applicant was a continual shirker; that he failed to 


pay just debts; and that he destroyed the morale of others by his apathy in fulfilling unit responsibilities.  He supported his recommendation with the applicant’s disciplinary history and an extensive record of counseling.  

7.  On 28 December 1967, a board of officers convened to consider the applicant’s case.  The board of officers, after carefully considering the evidence before it found the applicant was undesirable for further retention in the military service because of frequent incidents of a discreditable nature with military authorities and habitual shirking.  The board of officers recommended the applicant be discharged for unfitness with issuance of an undesirable discharge.

8.  On 16 January 1968, the separation authority approved the applicant’s discharge for unfitness and directed he receive an Undesirable Discharge Certificate.  On 6 February 1968, the applicant was discharged accordingly.

9.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant upon his discharge shows he completed 1 year, 4 months, and 28 days of creditable active service with 64 days of time lost due to AWOL and confinement.

10.  There is no indication the applicant petitioned the Army Discharge Review Board (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 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).  The separation authority could authorize a general discharge under honorable conditions or an honorable discharge if warranted by the member's record of service.  However, 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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his undesirable discharge to an honorable discharge has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history that includes an SCM conviction; two SPCM convictions; his acceptance of NJP on two separate occasions; and his accrual of 64 days of time lost due to AWOL and confinement. 

4.  Given the applicant’s undistinguished record of service and his extensive record of misconduct, the undesirable discharge he received accurately reflects the overall quality of his service which did not support the issuance of an honorable discharge or a general discharge at the time of his discharge and does not support an upgrade now.

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)                                         AR20110006609



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ABCMR Record of Proceedings (cont)                                         AR20110006609



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