IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110008028 


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.

2.  The applicant states he was 18 years of age when he joined the Army with his buddy.  He was having trouble at home due to his parent's divorce and he thought joining the Army would ease the pain.  He was very immature, especially after returning from Korea when he made the mistake of being swayed by events happening outside the Army.  He got caught up in the social disorder in the 1960s.  He regrets the misjudgment and the shame but he continues to be a patriotic American and will never change.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 20 October 1946 and he enlisted in the Regular Army on 30 September 1964 at the age of 18.  He held military occupational specialty 71B (Clerk Typist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3. 

3.  His record also shows he served in Korea from 21 March 1965 to 15 March 1966.  He was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  His record reveals an extensive history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) as follows:

* on 13 January 1965, for being absent without leave (AWOL) from
11 to 13 January 1965
* on 17 May 1966, for failing to go at the time prescribed to his appointed place of duty on 16 May 1966
* on 27 June 1966, for failing to go at the time prescribed to his appointed place of duty on 22 June 1966
* on 10 October 1966, for being AWOL from 3 to 10 October 1966

5.  On 9 February 1967, he was convicted by a special court-martial of three specifications of being AWOL from 14 October to 7 November 1966, 19 November to 24 December 1966, and 3 to 6 January 1967.  The court sentenced him to hard labor for 6 months, a forfeiture of pay, and a reduction to E-1.  The convening authority approved the sentence on 13 February 1967 but suspended the confinement for 6 months.

6.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 4 May 1967 under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness with a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate. He completed 2 years, 4 months, and 23 days of total active service with 144 days of time lost.

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, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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.

10.  Army Regulation 635-200, 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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 4 May 1967 under the provisions of Army Regulation 635-212 by reason of unfitness.  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.  He has provided no information that would indicate the contrary.
2.  The applicant was 18 years of age when he enlisted and nearly 20 years of age when he was convicted by a court-martial.  In any case, there is no evidence that his habitual misconduct was a result of his age or that he was any less mature than other Soldiers of the same age who successfully completed their service.

3.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  This is evident by his extensive history of NJP, AWOL, and court-martial.  Based on his record of indiscipline, his service clearly does not merit an upgrade of his discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110008028



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ABCMR Record of Proceedings (cont)                                         AR20110008028



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