IN THE CASE OF:	  

		BOARD DATE:	  13 March 2012

		DOCKET NUMBER:  AR20110019027 


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 a general discharge.

2.  He states he was discharged under the assumption he would receive a general discharge, but when his discharge was approved it was an undesirable discharge.

3.  He 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.  On 5 May 1965, the applicant enlisted in the Regular Army at age 17 with parental consent.  After completing initial entry training, he was awarded military occupational specialty 62E (Heavy Construction Equipment Operator).  

3.  On 28 October 1965, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for violating a lawful regulation by failing to secure his valuables.

4.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) repeatedly beginning in December 1965 and in confinement for 47 days in 1966 and 104 days in 1967.  

5.  A DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) shows:

   a.  he was convicted by three summary courts-martial of:
   
* AWOL from 13 December 1965 to 4 January 1966
* AWOL from 22 to 24 January 1966
* breaking restriction on 22 January 1966
* AWOL from 12 to 15 February 1966

   b.  he was convicted by a special court-martial of AWOL from 31 March to 1 June 1966 and from 24 June to 18 July 1966.

6.  On 22 September 1967, he was evaluated at the Mental Hygiene Consultation Service, Fort Gordon, GA.  The examining psychiatrist found no evidence of any mental condition which would warrant consideration for treatment, hospitalization, or other disposition via medical channels.  He was found to be capable of distinguishing right from wrong and of adhering to the right, and he was found to possess sufficient mental capacity to act in his own behalf in administrative procedures deemed necessary by command.  The examining psychiatrist found he had a personality disorder manifested by inability to adjust to a military environment, but found no impairment for further military duty.  The examining psychiatrist strongly recommended administrative separation.

7.  On 4 December 1967, his commander informed him he was recommending him for discharge for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of frequent incidents of a discreditable nature with military authorities.  

8.  On 6 December 1967, he acknowledged he had been advised by counsel of the basis for contemplated action to accomplish his separation for unfitness.  He waived consideration of his case by a board of officers, personal appearance before such a board, and representation by counsel.  He elected not to submit statements in his own behalf.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an undesirable discharge under conditions other than honorable was issued to him, and that as the result of issuance of such a discharge, he could be ineligible for many or all benefits as a veteran under Federal and State laws. 

9.  On 15 December 1967, the separation authority approved his discharge and directed he receive a DD Form 258A (Undesirable Discharge Certificate).  On 21 December 1967, he was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was assigned a separation program number of 28B (frequent incidents of a discreditable nature with civil or military authorities).  He completed 9 months and 8 days of total active service with 677 days lost due to AWOL and confinement.  

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, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b 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 discharged under the provisions of Army Regulation 635-212 by reason of unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

2.  He was convicted of being AWOL on four occasions, and he accrued 677 days of time lost due to AWOL and confinement.  Based on this 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 general 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)                                         AR20110019027





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ABCMR Record of Proceedings (cont)                                         AR20110019027



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