IN THE CASE OF:	  

		BOARD DATE:	    22 December 2011

		DOCKET NUMBER:  AR20110012268 


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 his undesirable discharge be upgraded to an honorable discharge or a general discharge under honorable conditions.

2.  The applicant states there was no injustice.  He was young and did not realize the importance of accepting the offer of an undesirable discharge.  He served for 30 months, including a complete tour of duty in Southeast Asia.  

3.  The applicant provides no additional evidence in support of his application.

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.  He enlisted in the Regular Army at age 17, with parental consent, on 
28 December 1964, for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11H (Infantry Direct Fire Crewman).

3.  On 4 July 1965, he was assigned to Headquarters and Headquarters Company (HHC), 2nd Battalion, 32nd Infantry, in the Republic of Korea.

4.  On 1 February 1966, he was tried before a special court-martial.  He pled guilty and was found guilty of:

* wrongfully having a false official pass
* disobeying a lawful order from a noncommissioned officer 

5.  He accepted nonjudicial punishment (NJP) on 2 April 1966 for wrongfully having a false official pass.

6.  On 18 June 1966, he was tried before a summary court-martial.  He pled not guilty but was found guilty of:

* wrongfully striking a Korean citizen
* wrongfully having a false official pass

7.  On 29 August 1966, he was assigned to HHC, 1st Battalion, 10th Infantry, at Fort Carson, CO.

8.  He accepted NJP on:

* 2 December 1966, for two specifications of failure to go at the time prescribed to his appointed place of duty
* 9 March 1977, for being absent without leave (AWOL) from 1 - 3 March 1967

9.  On 13 March 1967, he was given a neuropsychiatric examination by a captain, Medical Corps, a psychiatrist at Fort Carson.  The doctor diagnosed him as having a passive-aggressive personality.  

	a.  His difficulties seem to have arisen since he got to Fort Carson.  The doctor suggested that the applicant be given a trial of duty at a station other than Fort Carson.

	b.  He was cooperative and coherent and seemed to be desirous of continuing his military duty.
	c.  The doctor found no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.

	d.  The doctor stated the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

10.  On 16 March 1967, he was tried before a special court-martial.  He pled guilty and was found guilty of:

* breaking restriction
* failure to go at the time prescribed to his appointed place of duty

11.  His complete separation processing package was not available for review.

12.  On 17 March 1967, his commander recommended he be eliminated from the service under the provisions of Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability) because of his frequent breaches of conduct and discipline.  Numerous attempts had been made to rehabilitate him and all had met with failure.

13.  On 3 April 1967, Headquarters, 5th Infantry Division, determined the rights of the applicant may have been usurped in that the waiver of board action may not have been fully explained to him prior to his initialing the waived items on the basic correspondence.  The rights of the applicant were to be fully explained to him and a new acknowledgement by the individual be prepared and that action be resubmitted.

14.  On 27 May 1967, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him for unfitness.  The applicant waived consideration by a board of officers and a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.

15.  He acknowledged that as the result of issuance of a general discharge under honorable conditions he may expect to encounter substantial prejudice in civilian life.  He further acknowledged that as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.


16.  On 2 June 1967, the appropriate authority accepted the applicant's waiver of a hearing before a board of officers, approved his discharge under Army Regulation 635-212 for unfitness, and directed he be issued an Undesirable Discharge Certificate.

17.  On 3 June 1967, he was tried before a special court-martial.  He pled guilty and was found guilty of:

* being AWOL from 9 April to 1 May 1967
* being AWOL from 2 - 25 May 1967

18.  On 6 June 1967, the unexecuted portion of his sentence from his special court-martial on 3 June 1967 was remitted.

19.  On 9 June 1967, he was discharged under the provisions of Army Regulation 635-212 by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities with an Undesirable Discharge Certificate.  He completed 2 years, 3 months, and 11 days net active service that was characterized as under other than honorable conditions.  He had 61 days time lost.

20.  On 20 October 1977, Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

21.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  


22.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An individual separated by reason of unfitness was furnished an Undesirable Discharge Certificate.  However, an Honorable or General Discharge Certificate could have been awarded if the individual had been awarded a personal decoration or if warranted by the particular circumstances in a given case.         

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s age at time of enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

2.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

3.  He accepted NJP on three occasions and his record of service included convictions by one summary court-martial and three special courts-martial.  He also had 61 days time lost.

4.  His record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The ABCMR does not upgrade discharges based solely on the passage of time. Therefore, there is no basis to upgrade his undesirable discharge to a general discharge or 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)                                         AR20110012268



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110012268



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1