IN THE CASE OF:	  

		BOARD DATE:  12 April 2012

		DOCKET NUMBER:  AR20110019696 


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 at the time he was a 19-year old kid abusing alcohol and some minor drugs.  He goes on to state that his infractions included missing work too often.  He also states it has been many years since his discharge and he has lived an exemplary life since 1973 as he has completed a university education and has been a teacher for more than 20 years.  He also states he hopes his son, who will be enlisting soon, can be unashamed of his father’s service record.

3.  The applicant provides no additional documents with his application.

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 in May 1952 and he enlisted in the Regular Army in Houston, TX on 2 February 1972 for a period of 3 years and training in the clerical career management field.

3.  He completed his basic training and advanced individual training as a clerk-typist at Fort Polk, LA and was transferred to Fort Sam Houston, TX for training as a medical records specialist.  He was advanced to the pay grade of E-4 on
11 July 1972.  He completed that training and he was transferred to Fort Ord, CA for duty as a medical records specialist.

4.  On 12 September 1972, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for being absent without leave from 27 August to 28 August 1972 and from 3 September to 4 September 1972.

5.  On 24 October 1972, NJP was imposed against him for three specifications of failing to go at the time prescribed to his appointed place of duty.

6.  On 19 January 1973, NJP was imposed against him for two specifications of disobeying a lawful order from a superior commissioned officer.

7.  On 6 June 1973 NJP, NJP was imposed against him for failing to obey a lawful order from a superior commissioned officer to have his area of responsibility properly cleaned and maintained.

8.  On 3 December 1973, he was transferred to Bangkok, Thailand for assignment to the Medical Department Activity (MEDDAC).

9.  On 19 April 1974, NJP was imposed against him for failing to obey a lawful order or regulation and failing to go at the time prescribed to his appointed place of duty.

10.  On 15 May 1974, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel, paragraph
13-5a (1) for unfitness due to his frequent involvement in incidents of a discreditable nature with military authorities.  He cited as the basis for his recommendation the applicant’s disciplinary record, his negative attitude towards his duties, his repeated failure to perform his job, repeated incidents of failing to repair, failing  to maintain appearance standards, refusing orders, and failing to respond to numerous counseling sessions and rehabilitation.


11.  After consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

12.  On 29 May 1974, the appropriate separation authority approved the recommendation for discharge and directed the applicant be furnished an Undesirable Discharge Certificate.

13.  He departed Thailand on 5 June 1974 and he was transferred to Oakland Army Base, CA where he was discharged under other than honorable conditions on 6 June 1974 under the provisions of Army Regulation 635-200, paragraph
13-5a(1) for unfitness due to his frequent involvement in incidents of a discreditable nature with military authorities.  He served 2 years, 3 months, and 23 days of total active service.

14.  At the time of his discharge he was advised of the procedures for applying to the Army Discharge Review Board (ADRB) for an upgrade of his discharge, which he acknowledged with his signature.  However, there is no evidence in the available records to show he applied to the ADRB within that board’s 15-year statute of limitations.

15.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  It stated that:

	a.  Chapter 13 contained the policy and outlined the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction; an established pattern of shirking; and/or an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

	b.  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.  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 administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant's overall record of service has been considered.  However, the repeated nature of his misconduct during his period of service is not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply does not rise to the level of an honorable or a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110019696



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ABCMR Record of Proceedings (cont)                                         AR20110019696



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