IN THE CASE OF:	  

		BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110014127 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  He states:

	a.  He was told by a judge advocate general officer he could get an early release with a general discharge.

	b.  He found out 6 months after he was discharged that he didn't receive a general discharge.

	c.  A veterans' representative at the Employment Development Department recently informed him of the process to request an upgrade of his discharge.

	d.  He spent time fighting in the Vietnam War while in the Army.  He's very proud he fought for his country during this difficult time.  He was in the Airborne Rangers with over 25 jumps to his credit.  He was also a very young man at the time.

	e.  He has been a very productive member of this great country, has worked full time throughout his life, has been an excellent husband and father, and has always provided for the needs of his four children.

	f.  He learned respect, discipline, and integrity through his time in the service and these traits have helped him to become the outstanding citizen that he is today.

3.  He provides his DD Form 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's record shows he was born on 3 September 1951.  He enlisted in the Regular Army on 27 February 1970 at the age of 18.  Upon completion of initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He also completed basic airborne training at Fort Benning, GA.  The highest rank/pay grade he attained while on active duty was specialist four/E-4.  However, at the time of his separation he held the rank/pay grade of private/E-1.

3.  He was assigned to Company C (Rangers), 75th Infantry (Airborne), I Field Force, in Vietnam from 25 October 1970 to 27 May 1971.

4.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on three separate occasions for the following offenses:

* being absent without leave (AWOL) from 24 September to 5 October 1970 (this period of lost time is not listed on his DD Form 214 and the entry is lined through on his DA Form 20 (Enlisted Qualification Record))
* being AWOL from 16 to 23 June 1971
* failing to go at the time prescribed to his appointed place of duty

5.  He was convicted by a special court-martial of being AWOL from 24 August to 26 October 1971.
6.  His discharge packet is not available.  However, his DD Form 214 shows he was discharged on 6 April 1972 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness for frequent incidents of a discreditable nature with military authorities.  He was issued a discharge under other than honorable conditions (undesirable).

7.  At the time of his discharge, he completed 1 year, 9 months, and 22 days of creditable active service with 78 days of lost time.

8.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  References:

	a.  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.

	b.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority 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.

	c.  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 contentions in regard to his request for an upgrade of his discharge are acknowledged.  However, his record is devoid of any evidence and he did not provide any evidence that he was ever told he would be issued a general discharge in lieu of an undesirable discharge.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.

2.  His service record supports his statements that he served during the Vietnam War and served with the Airborne Rangers.  However, these facts alone are not sufficiently mitigating to warrant an upgrade of discharge.

3.  Records show he was 19 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  His contentions regarding his post-service achievements and conduct are acknowledged.  However, good post-service conduct alone is not a basis for upgrading a discharge.

5.  In the absence of evidence to the contrary, it is presumed that the applicant's administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time.

6.  His service record shows he received three Article 15's and one special court-martial.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an honorable or a general under honorable conditions discharge.

7.  The evidence of record does not indicate the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to honorable.

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20110014127



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ABCMR Record of Proceedings (cont)                                         AR20110014127



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