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Decision Text

ARMY | BCMR | CY2011 | 20110010671
Original file (20110010671.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	    6 December 2011

		DOCKET NUMBER:  AR20110010671 


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.  He states his discharge was a wrongful action because "he never said anything to me."

3.  He provides five character-reference letters.

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 1 March 1971.  He was awarded military occupational specialty 12A (Pioneer).  The highest rank/grade he held was private first class/E-3.

3.  He accepted nonjudicial punishment (NJP) on 15 June 1971 for breaking restriction and on 14 April 1972 for disobeying a lawful order from his commanding officer.

4.  On 9 February 1972, the applicant's commander notified him of his intent to recommend his discharge for unfitness and of his rights in conjunction with that recommendation.

5.  On 17 February 1972, he was convicted by a summary court-martial of being absent without leave (AWOL) from 11 to 27 January 1972.

6.  His records show he was counseled on 24 occasions for infractions including having improper personal appearance, missing or sleeping on duty, being AWOL, and breaking restriction.

7.  He was advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  He acknowledged he understood he might encounter substantial prejudice in civilian life in the event that a general discharge under honorable conditions were issued to him.  He further acknowledged he understood if an undesirable discharge under conditions other than honorable were issued to him, he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  The applicant then waived his rights.  He did not submit a statement on his own behalf.

8.  On 28 March 1972, the separation authority approved the applicant's elimination from the service because of unfitness.

9.  On 28 April 1972, he was given an undesirable discharge under the provisions of Army Regulation 635-212 with his service characterized as under other than honorable conditions.  His DD Form 214 shows he completed a total of 1 year, 1 month, and 7 days of active military service with 23 days of lost time.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 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 6 provided that an individual was subject to separation for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

13.  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.  He was discharged under the provisions of Army Regulation 635-212 for unfitness.  His records show he accrued a total of 23 days of lost time.  He received NJP for breaking restriction and for disobeying a lawful order from his commanding officer.  He was convicted by court-martial of being AWOL.
 
2.  Based on the applicant's misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

3.  Contrary to his contention that his discharge was a wrongful action, the evidence indicates all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  His character and post-service conduct as attested to in the supporting statements are noteworthy.  However, his character of service is based on his performance and conduct during the period in which he served.  He has not provided any evidence to mitigate the misconduct he committed during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20110010671



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ABCMR Record of Proceedings (cont)                                         AR20110010671



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