BOARD DATE:	  15 December 2011

		DOCKET NUMBER:  AR20110013128 


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 (UD) be upgraded.

2.  The applicant states he received a second summary court-martial (SCM) he did not deserve because he was not absent without leave (AWOL).  He claims he suffered from an injury that prevented him from performing his duties.

3.  The applicant provides a self-authored statement with associated documents and refers to a Department of Veterans Affairs (VA) claim number 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.  The applicant's record shows he enlisted in the Regular Army on 18 October 1965 and was trained in and awarded military occupational specialty 62E (Heavy Equipment Operator).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was advanced to the rank of private first class/E-3 on 16 April 1968 and this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private/E-2 on 15 July 1968 and to private/E-1 on 23 October 1968 for cause.

4.  The applicant's disciplinary history includes an SCM conviction on 1 September 1966; two special court-martial (SPCM) convictions on 29 March and 28 July 1967, respectively; and acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 15 July 1968.

5.  The unit commander notified the applicant of his intent to recommend his discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness.  On 9 August 1968, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and the rights available to him.  Subsequent to this counseling, the applicant waived his right to have his case considered by and his right to personal appearance before a board of officers.  He also waived his right to representation by appointed counsel and elected not to submit statements in his own behalf.

6.  On 3 September 1968, the unit commander submitted a recommendation for the applicant's discharge for unfitness under the provisions of Army Regulation 635-212.  He cited the applicant's habits and traits of character manifested by repeated commissions of petty offenses and AWOL as the basis for taking the separation action.

7.  On 8 October 1968, the separation authority approved the applicant's discharge for unfitness and directed he receive a UD Certificate.  On 24 October 1968, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant upon his discharge shows he completed 1 year and 10 months of creditable active service with 433 days of time lost due to AWOL and confinement.

8.  On 1 November 1973 after carefully reviewing the applicant's entire record and the issues he presented, the Army Discharge Review Board (ADRB) determined the applicant's discharge was proper and equitable and denied the applicant's appeal for an upgrade of his discharge.

9.  On 2 December 1977, the ADRB reconsidered the applicant's case and after careful consideration of the entire record again voted unanimously to deny the applicant's petition for an upgrade of his discharge.

10.  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 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  The separation authority could authorize a general discharge under honorable conditions or an honorable discharge if warranted by the member's record of service.  However, when separation for unfitness was warranted, a UD was normally considered appropriate.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.  The applicant's request for an upgrade of his UD based on an unjust SCM conviction has been carefully considered.  However, there is insufficient evidence to support this claim.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

2.  The applicant's record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history that includes an SCM conviction, two SPCM convictions, acceptance of NJP, and accrual of 433 days of time lost due to AWOL and confinement.

3.  Given the applicant's undistinguished record of service and his extensive record of misconduct, the UD he received accurately reflects the overall quality of his service which did not support the issuance of an honorable discharge or a general discharge at the time of his discharge and does not support an upgrade now.

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)                                         AR20110013128



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ABCMR Record of Proceedings (cont)                                         AR20110013128



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