IN THE CASE OF:	  

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110012013 


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 a fully honorable discharge.

2.  The applicant states his wife was pregnant in 1967 and she had some complications.  He was concerned about her.  She needed him home at the time due to the complications.  She needed 9 pints of blood and she was in the hospital for 10 days with no one to care for her. 

3.  The applicant did not provide any evidence.

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 10 July 1966 and he held military occupational specialty 11B (Light Weapons Infantryman).  He was awarded the Parachutist badge and the National Defense Service Medal.  He attained the rank/grade of private/E-2 and he was assigned to Fort Bragg, NC.

3.  On 18 January 1967, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 13 to 17 January 1967.

4.  On 14 August 1967, he was convicted by a special court-martial of three specifications of AWOL from 21 March to 25 April 1967, 1 to 8 May 1967, and 5 to 9 July 1967.  The court sentenced him to confinement at hard labor for 6 months, reduction to private/E-1, and a suspended forfeiture of $37.00 pay per month for 6 months.  His sentence was approved on 18 August 1967.

5.  On 22 August 1967, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Unfitness and Unsuitability) due to unfitness.  The commander cited the applicant's continuous disciplinary problems, AWOL, and habitual misconduct as the bases for the recommendation and stated that repeated attempts to assist the applicant in his efforts to rehabilitate himself had failed completely.  His repeated AWOL and total disregard of military authorities revealed he was unsuitable for military service.  

6.  On 15 September 1967, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  

7.  He also acknowledged he under he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He waived consideration of his case by a board of officers, he waived a personal appearance before a board of officers, and he declined to make a statement in his own behalf.

8.  His immediate commander subsequently initiated separation action against him under the provisions of Army Regulation 635-212 by reason of unfitness.  The immediate commander stated the undesirable discharge was recommended because of the applicant's previous periods of AWOL, instance of courts-martial, and his complete lack of motivation for rehabilitation.  He further cited the applicant's continual intentional shirking of his duties and his behavior which rendered him repeatedly subject to punitive action. He recommended an undesirable discharge.

9.  On 25 and 26 October 1967, the applicant's intermediate and senior commanders recommended approval of the applicant's discharge for unfitness and the issuance of an Undesirable Discharge Certificate.

10.  Consistent with the chain of command's recommendations, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed that the applicant be furnished an Undesirable Discharge Certificate.   Accordingly, on 16 November 1967, the applicant was discharged from the Army.  

11.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 1 year, 2 months, and 8 days of creditable active military service and he had 58 days of lost time.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations. 

13.  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.

14.  Army Regulation 635-200 (Personnel Separations) 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.  


15.  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 applicant’s records reveal a history of indiscipline and/or misconduct including one NJP action, one instance of a special court-martial, and a history of AWOL.  All attempts to rehabilitate him failed.  Accordingly, his chain of command initiated separation action against him.  The applicant's discharge was in accordance with applicable regulation, all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

2.  There is no evidence in his records and he did not provide any evidence that shows his wife encountered problems at the time or that he addressed such problems with his chin of command.   There would have been many other ways to alleviate the alleged problem had he chosen to use them.  

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to 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)                                         AR20110012013



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ABCMR Record of Proceedings (cont)                                         AR20110012013



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