IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110015729 


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 to an honorable discharge.

2.  He states, in effect, he was only 19 years old and did not have a complete understanding of the situation at the time.  He desires an upgrade of his discharge in order to be eligible to receive veteran's benefits.

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 was born on 16 February 1949 and enlisted in the Regular Army on 28 February 1969 at age 20.  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, at the time of separation, he held the rank/grade of private/E-1.

3.  The applicant's DA Form 20 (Enlisted Qualification Record), item 38 (Record of Assignments) shows he was assigned to the U.S. Army Depot, United States Army Pacific, from 11 December 1969 until he was reassigned to Fort Lewis, WA on 21 June 1970.

4.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions for the following offenses:

* Violating unit Standing Operating Procedures
* Failing to obey a lawful order by visiting an off limits area
* Wrongfully possessing two ounces, more or less, of marijuana
* Absenting himself from his appointed place of duty without authority on three occasions
* Failing to go to his appointed place of duty at the time prescribed
* Absenting himself from his unit without authority from 22 to 27 April 1970

5.  On 27 May 1970, he underwent a command referred psychiatric evaluation in connection with administrative board proceedings under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), due to unfitness.  His evaluation revealed no evidence of any mental condition which would warrant consideration for treatment, hospitalization, or other disposition via medical channels.  He was capable of distinguishing right from wrong and of adhering to the right.  He possessed sufficient mental capacity to act in his own behalf in administrative procedures deemed necessary by his command.  As a result, he was psychiatrically cleared for any administrative action deemed appropriate by his chain of command.

6.  On 10 June 1970, the applicant's unit commander notified him that action was being initiated to separate him under the provisions of Army Regulation 635-212 for unfitness.  The applicant was informed of the basis for the recommendation and was advised of his right to present his case before a board of officers, to be represented by counsel, to submit written statements in his own behalf, or to waive these rights in writing.

7.  The applicant acknowledged receipt of the notification and the fact he had been advised by counsel of the basis for the contemplated separation action.  He elected to waive consideration of his case by and appearance before a board of officers, to submit statements in his own behalf, and to be represented by counsel.  He acknowledged his understanding that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued and that issuance of an undesirable discharge under other than honorable conditions may render him ineligible for many or all of the benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.  He further indicated his understanding that he could, up until the date the discharge authority directs or approves his discharge, withdraw his waiver and request that a board of officers hear his case.

8.  On 10 June 1970, the applicant's unit commander recommended that the applicant be required to appear before a board of officers convened under the provisions of Army Regulation 635-212 to determine whether he should be discharged before the expiration of his term of service for unfitness and that he be issued an Undesirable Discharge Certificate (DD Form 258A).  The discharge was recommended because of his habits and traits of character manifested by his frequent incidents of a discreditable nature with military authorities.  The commander concluded that the applicant's performance was characterized by his reaction against the rules and regulations that govern the military, which incapacitated him from becoming a satisfactory Soldier.

9.  The applicant's intermediate commanders recommended approval of the separation action under the provisions of Army Regulation 635-212 with an undesirable discharge.

10.  The separation approval authority waived further counseling and rehabilitation and approved the applicant's discharge.  He directed that the applicant be issued an Undesirable Discharge Certificate.

11.  Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, Special Orders Number 172, dated 21 June 1970, ordered the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness, effective 21 June 1970, with the issuance of an Undesirable Discharge Certificate.

12.  The DD Form 214 issued to the applicant at the time confirms he was discharged accordingly.  He had completed a total of 1 year, 3 months, and 10 days of creditable active military service and he had 12 days of lost time due to being AWOL and/or in confinement.

13.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge.  On 5 May 1972, The Adjutant General notified the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined that he was properly discharged.
Accordingly, his request for a change in the type and nature of his discharge was denied.

14.  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 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or 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.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy 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.

16.  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 was 20 and 21 years of age at the time of his offenses.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

2.  His record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ on five occasions for a variety of offenses.

3.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally undesirable and the applicant was made aware of this prior to his discharge.

5.  In view of the foregoing, there is no basis for upgrading the applicant's undesirable discharge to either a general or an honorable discharge.

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)                                         AR20110015729



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ABCMR Record of Proceedings (cont)                                         AR20110015729



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