IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110015043


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.  The applicant states:

* He had orders to go to Vietnam
* He was going to be late reporting to his unit so he called and he was told to wait 1 week for new orders
* He never received the orders
* He was apprehended and placed in the stockade
* Things went downhill from there
* He has been a good citizen since his discharge

3.  The applicant provides no documentary 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 was inducted into the Army of the United States on 18 March 1968.  He completed training and he was awarded military occupational specialty (MOS) 11B (light weapons infantryman).

3.  Orders contained in the applicant's record, dated 5 August 1968, show he was assigned to Oakland, CA with a reporting date of 6 September 1968 for further assignment to Vietnam.

4.  On 30 January 1969, he was convicted by a special court-martial of being absent without leave (AWOL) from 6 September 1968 to 16 December 1968.  He was sentenced to reduction to private (PV1)/E-1, confinement at hard labor for
6 months, and forfeiture of $73.00 pay per month for 6 months.  On 12 February 1969, the convening authority approved only so much of the sentence as provided for the reduction to PV1/E-1, confinement at hard labor for 6 months, and forfeiture of $50.00 pay per month for 4 months.

5.  On 23 September 1969, he was convicted by a special court-martial of being AWOL from 27 May 1969 to 7 August 1969.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $82.00 pay per month for 6 months.  On 30 September 1969, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 6 months and forfeiture of $50.00 pay per month for 6 months.

6.  On 23 October 1969, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations -Discharge - Unfitness and Unsuitability) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander cited the applicant's two special court-martial convictions for being AWOL as the basis for the action.

7.  On 12 December 1969, after consulting with counsel and being advised of his recommended separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.


8.  On 23 December 1969, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.

9.  On 8 January 1970, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil or military authorities.  He completed 5 months and 3 days of total active service with 513 days of time lost.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities was subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions he was told to wait for new orders for Vietnam, he never received the orders, and he was apprehended were noted.  However, his record shows he went AWOL on two occasions.

2.  He contends he has been a good citizen since his discharge; however, good post-service conduct alone is normally not a basis for upgrading a discharge.


3.  His brief record of service included two special court-martial convictions and 513 days of time lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to an honorable or a general discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20090010900



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ABCMR Record of Proceedings (cont)                                         AR20110015043



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