BOARD DATE:	  13 March 2012

		DOCKET NUMBER:  AR20110019102 


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 discharge to general under honorable conditions.

2.  He states after 38 years, he believes he has paid for his mistake.

3.  He provides no documents in support of his request.

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 30 June 1972.  

3.  His DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS [Expiration Term of Service]) he was:

	a.  absent without leave (AWOL) during following periods:

* 30 September to 1 October 1972
* 12 to 31 October 1972
* 18 January 1973
* 22 January to 5 February 1973
* 8 to 16 February 1973
* 2 March to 6 April 1973

b.  imprisoned from 22 to 31 October 1972.

4.  Orders in his record show he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on 14 September and 11 October 1972 for unspecified misconduct.  

5.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows he was returned to military control on 26 October 1972.  The form shows he had been apprehended by civil authorities and was being lodged in a county jail pending a court appearance for the offense of grand larceny.

6.  The complete facts and circumstances of his discharge processing are not available.  However, his record includes Special Orders Number 63 Extract, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 30 March 1973.  The orders show he was to be discharged with an Undesirable Discharge Certificate for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  His record also contains a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing he was discharged under conditions other than honorable under the provisions of Army Regulation 635-200, chapter 13.  He completed 6 months and 17 days of total active service with 83 days lost.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.



9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  The regulation 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.  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 evidence of record does not support the applicant's request for upgrade of his discharge.

2.  Based on his record of AWOL and civil confinement, it appears he was discharged for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  He has not provided documentation showing, nor does the evidence of record show, any irregularities in the administrative proceedings against him that led to his discharge or that his rights were not protected throughout the proceedings.

3.  Based on his record of indiscipline, which includes several periods of being AWOL, imprisonment by civil authorities, and two instances of NJP, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant 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)                                         AR20110019102





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ABCMR Record of Proceedings (cont)                                         AR20110019102



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