IN THE CASE OF:	  

		BOARD DATE:	  26 January 2012

		DOCKET NUMBER:  AR20110013111


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 (HD).

2.  The applicant states:

* he had an HD for prior service
* after reenlisting, he became a drug abuser
* he was absent without leave (AWOL) to avoid drugs
* upon return to military control, he was punished and placed in the stockade
* when he was released, he was transferred and became the U.S. Army South Chaplain's driver
* things went well until he was arrested in a known Panamanian drug bar
* he was charged, pleaded not guilty, was jailed, and was convicted
* he was sexually assaulted in jail before U.S. Forces gained his release
* he became reclusive and again was AWOL

3.  The applicant provides:

* a self-authored letter
* two DD Forms 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 enlisted in the Regular Army for 3 years on 22 May 1968.  He was trained in military occupational specialty (MOS) 11B (light weapons infantryman) and was assigned to U.S. Army South, Panama.

3.  On 20 October 1969, the applicant was honorably discharged for immediate reenlistment.  He reenlisted on 21 October 1969 for 6 years.

4.  There is no administrative separation packet in the applicant's official military personnel file.  However, the record does contain two records of nonjudicial punishment under Article 15, Uniform Code of Military Justice, for:

	a.  failing to go to his appointed place of duty on or about 0730 hours, 2 December 1969, and

	b.  willfully disobeying a lawful order to get a haircut on or about 1545 hours, 13 May 1969.

5.  On 5 May 1970, the applicant was convicted by a special court-martial of being AWOL from on or about 22 February 1970 to on or about 9 March 1970.

6.  On 15 January 1971, the applicant was discharged with an under other than honorable conditions character of service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.  His DD Form 214 lists his periods of lost time as:

* 2 January 1970-7 January 1970
* 10 January 1970-11 February 1970
* 22 February 1970-7 April 1970
* 2 May 1970-3 May 1970
* 11 June 1970-11 June 1970
* 30 June 1970-8 October 1970
* 10 November 1970-10 December 1970

7.  There is no record the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 15-year statute of limitations.

8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  The regulation provided that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, a UD was normally considered appropriate.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) states the characterization of service at separation will be based on the quality of the Soldier's service subject to the limitations under the various reasons for separation.

	a.  Paragraph 3-7a states an HD 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.

	b.  Paragraph 3-7b states 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 HD.  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 requests his UD be upgraded to an HD.

2.  There is no evidence of record and the applicant has provided no evidence to show he was a drug abuser or that he was sexually assaulted in a Panamanian jail.  The record does show he exhibited a pattern of misconduct.

3.  The applicant's misconduct is well documented and certainly would have supported a UD for unfitness under Army Regulation 635-212.

4.  The applicant's administrative separation packet is not available, but regularity is presumed in his discharge proceedings and there is a presumption it was accomplished in compliance with applicable regulations without procedural errors which would have jeopardized his rights.  There is insufficient evidence to warrant the requested relief.

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)                                         AR20110013111



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ABCMR Record of Proceedings (cont)                                         AR20110013111



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