BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110010702 


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 (UD) to an honorable discharge.

2.  He states that upon receiving notification of his father's death he went home on leave for 30 days and he attempted to return to Germany, but lost his return trip ticket on the bus ride to SC.  He states he was unable to obtain the money for a return flight.  He adds that the Red Cross obtained transportation for him to return home and he reported to Red Stone Arsenal where he was put to work.  He maintains that he did not receive pay during this period which caused a hardship for his family.  Therefore, he went absent without leave (AWOL) and worked the farm for his mother. 

3.  He 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’s military records are not available to the ABCMR for review.  An exhaustive search was undertaken to locate his military records which are necessary for the processing of his application.  Unfortunately, his records could not be located.  However, based on a copy of his DD Form 214 and copies of his elimination proceedings, the ABCMR was able to conduct a fair and impartial review of his case. 

3.  The available evidence shows he enlisted in the Regular Army on 4 March 1966.  

4.  On 8 November 1967, the applicant was consulted with military counsel.  After being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, to a personal appearance before a board of officers, and to counsel.  He also elected not to submit statements on his behalf.

5.  He acknowledged he understood that he may be furnished an Undesirable Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life if he was issued a UD.

6.  On 9 November 1967, the Commander, Detachment 1, Special Processing Detachment, U.S. Army School/Training Center, Fort Gordon, GA, recommended his separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.  The commander stated the elimination was recommended because the applicant had established a drastic repetitive pattern of violation of Article 86, Uniform Code of Military Justice, resulting in trial and conviction by two special courts-martial.

7.  On 27 November 1967, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 for unfitness with the issuance of an Undesirable Discharge Certificate.

8.  His DD Form 214 shows he was discharged on 5 December 1967 under the provisions of Army Regulation 635-212, for unfitness, due to frequent involvement in incidents of a discreditable nature with civil or military authorities with a UD, and assigned separation program number (SPN) 28B.  He completed 10 months and 9 days of total active service with 327 days of lost time.
9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  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.

11.  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.

12.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was separated for "unfitness" as recommended by the commander of the Special Processing Detachment for trial and conviction by two special courts-martial.  These conditions are consistent with the conditions cited for separation for unfitness.  Additionally, as stated in Army Regulation 635-212, when separation for unfitness was warranted an undesirable discharge was normally considered appropriate.  

2.  The available evidence indicates that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

3.  His record of service included two court-martial convictions and 327 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 unsatisfactory and there is no basis to upgrade his 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)                                         AR20110010702



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ABCMR Record of Proceedings (cont)                                         AR20110010702



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