IN THE CASE OF:	  

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110008461 


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 to an honorable discharge.

2.  He states he desires an upgraded discharge in order to qualify for service-connected benefits for conditions resulting from two tours of duty in the Republic of Vietnam (RVN).  from the Department of Veterans Affairs (VA).  He contends that he was experiencing marital problems while serving in the RVN so, he requested to return home early and his request was denied, but he was granted leave.  His immaturity caused him to remain absent without leave (AWOL) for   10 days prior to returning to duty in the RVN.  When he returned to the States his marriage was still problematic, but he and his wife decided to have a child.  Unfortunately, the child was born with a severe birth defect and died so, he went AWOL again.  His wife's emotional state and their marital problems worsened.  Dealing with these matters caused him to neglect his military responsibilities.  He states he regrets not using better judgment or requesting counseling for him and his wife and attests that now he can see his judgment was poor and his actions were irresponsible.

3.  He provides a VA Form 21-4138 (Statement is Support of Claim) containing the above 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 was born on 12 May 1944 and enlisted in the Regular Army on 16 May 1961.  On 15 May 1964, he was released from active duty (REFRAD) and transferred to the U.S. Army Reserve Control Group (Reinforcement) with an honorable characterization of service.  At the time of his REFRAD, he held the rank/grade of specialist four (SP4)/E-4.

3.  He again enlisted in the Regular Army on 29 July 1964.  The highest rank/grade he attained while serving on active duty was staff sergeant/E-6.  However, at the time of separation, he held the rank/grade of private/E-1.

4.  The applicant served in the RVN from 3 July 1966 through 11 September 1968.

5.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his unit without authority from 14 to 20 April 1970.

6.  His record also shows he was arraigned and tried by four special courts-martial which found him guilty of absenting himself from his unit without authority from 6 January to 27 February 1969; 4 June to 3 November 1969; 13 December 1969 to 26 January 1970; and 14 September 1970 to 13 January 1971.

7.  On 19 March 1971, he underwent a command referred psychiatric evaluation in connection with administrative board proceedings under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), due to unfitness.  His evaluation revealed no evidence of any mental condition which would warrant consideration for treatment, hospitalization, or other disposition via medical channels.  He was capable of distinguishing right from wrong and of adhering to the right.  He possessed sufficient mental capacity to act in his own behalf in administrative procedures deemed necessary by his command.  As a result, he was psychiatrically cleared for any administrative action deemed appropriate by his command.
8.  On 3 April 1971, the applicant's unit commander notified him that action was being initiated to separate him under the provisions of Army Regulation 635-212 for unfitness with an Undesirable Discharge Certificate.  The applicant was informed of the basis for the recommendation and was advised of his right to present his case before a board of officers, to be represented by counsel, to submit written statements in his own behalf, or to waive these rights in writing.

9.  A Certificate of Unsuitability for Enlistment/Reenlistment was approved to prevent the applicant from reenlisting in the U.S. Army.  The catalysts for this action were the aforementioned offenses.

10.  The commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212 for unfitness and that he be issued an Undesirable Discharge Certificate (DD Form 258A).  The discharge was recommended because of his repeated commission of court-martial offenses.  He concluded that the applicant's conduct and disciplinary records clearly indicated elimination due to unfitness was the most appropriate disposition.

11.  On 20 April 1971, the intermediate commander recommended approval of the separation action under the provisions of Army Regulation 635-212 with an undesirable discharge.

12.  On 29 April 1971, the separation approval authority waived further counseling and rehabilitation and approved the applicant's discharge.  He directed that the applicant be issued an Undesirable Discharge Certificate.

13.  Headquarters, U.S. Army School/Training Center and Fort Gordon, GA, Special Orders Number 124, dated 4 May 1971, ordered the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness, effective 4 May 1971, with an Undesirable Discharge Certificate.

14.  The DD Form 214 issued to the applicant at the time confirms he was discharged accordingly.  He had completed a total of 8 years, 3 months, and 16 days of creditable active military service and he had 337 days of lost time due to being AWOL and in confinement.

15.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

16.  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 6 of the regulation provided, in pertinent part, 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, 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.

17.  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.

18.  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 was 25 and 26 years of age at the time of his offenses.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

2.  The applicant's contentions regarding his marital strife and loss of a child were considered.  However, by his own admission, he chose not to seek assistance from his chain of command or to take advantage of counseling services which were readily available.  

3.  His record reveals a disciplinary history that includes his acceptance of NJP under the provisions of Article 15 of the UCMJ and conviction by four special courts-martial.

4.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally undesirable and the applicant was made aware of this prior to his discharge.

6.  In view of the foregoing, there is no basis for upgrading the applicant's undesirable discharge to either a general or an honorable 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 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)                                         AR20110008461





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ABCMR Record of Proceedings (cont)                                         AR20110008461



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