BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110014017 


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 discharge under other than honorable conditions to a general discharge (GD).

2.  He states he was under combat stress.

3.  He provides no additional 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 17 February 1971.  After completing initial entry training, he was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman) and assigned to duty in Vietnam.

3.  He twice received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), while completing the advanced individual training portion of his initial entry training:

	a.  on 12 May 1971, for being absent without leave (AWOL) from 25 April to 10 May 1971 and

	b.  on 10 June 1971, for being AWOL from 3 to 10 June 1971.

4.  His record shows he served in Vietnam in MOS 11C in an infantry unit from on or about 1 September 1971 through 16 April 1972.  The record does not show he received any awards for achievement in combat.

5.  In February 1972 while assigned to duty in Vietnam, he received NJP under the provisions of Article 15, UCMJ, for absenting himself from his place of duty (a guard post) for 1 hour on 13 February 1972.

6.  On 6 December 1972, his commander advised him he was being considered for elimination from the service for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), paragraph 6a(1), for frequent incidents of a discreditable nature with military authorities.  He was advised of his right to present his case before a board of officers, to submit statements in his own behalf, to be represented by counsel, and to waive those rights in writing.

7.  On 6 December 1972, his commander recommended his discharge for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  His commander stated he was a repeated AWOL offender who had received NJP three times and had recently returned from being AWOL for 4 months.  In paragraph 5, his commander noted the applicant had been AWOL from 17 July to 15 November 1972.

8.  On 7 December 1972 after consulting with counsel, he waived each of the rights described to him.  He acknowledged that as a result of issuance of a discharge under conditions other than honorable, 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 a separate document, he waived his right to a rehabilitative transfer.

9.  A DA Form 2496 (Disposition Form) shows that on 7 December 1972, the Chief, Department of Clinics, Fort Hood, TX, stated a complete review of physical and mental examinations failed to reveal any defects which would have contributed to the applicant's misconduct.  He was found to be physically and mentally fit for duty without profile limitations, responsible for his acts, and able to understand and participate in board proceedings.

10.  On 15 December 1972, the separation authority approved his discharge for unfitness and directed he receive an Undesirable Discharge Certificate.  On 19 January 1973, he was discharged accordingly.  The DD Form 214 issued at that time shows he completed 1 year, 5 months, and 11 days of total active service with 176 days of lost time.

11.  On 25 October 1973, the Acting Adjutant General informed him that the Army Discharge Review Board had determined he was properly discharged and his request for a change in the type and nature of his discharge was denied.

12.  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).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provides that a GD 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 shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.

2.  He received NJP on three occasions for unauthorized absences, one of which was for leaving a guard post in a combat zone.  He was AWOL while he was in initial entry training and he continued his pattern of unauthorized absences after he returned from Vietnam.  The available records contain no evidence showing "combat stress" was the cause of his absences.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD.

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)                                         AR20110014017



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ABCMR Record of Proceedings (cont)                                         AR20110014017



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