IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110019757 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he served his country and obeyed every order he was given and he feels that he was singled out.  He goes on to state that he is a humble God-fearing man and he did his best for his country during the conflict in Vietnam.  He further states that he does not understand how what he did was misconduct.

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 inducted into the Army of the United States in Shreveport, Louisiana on 30 April 1968.  He completed basic training at Fort Polk, Louisiana and was transferred to Fort Dix, New Jersey where he underwent on-the-job training as a duty Soldier.

3.  On 6 December 1968, he was transferred to Vietnam for duty as a security guard with the 184th Ordnance Battalion and U.S. Army Support Command – Qui Nhon.

4.  On 15 March 1969, nonjudicial punishment was imposed against him for being absent without leave from 9 March to 10 March 1969.

5.  On 24 April 1969, he was convicted by a special court-martial of disobeying a lawful order from his commanding officer and two specifications of sleeping on his guard post. 

6.  On 27 June 1969, he was convicted by a special court-martial of the wrongful possession of marijuana. 

7.  On 30 June 1969, he underwent a psychiatric evaluation and the examining psychiatrist opined that the applicant had no significant psychiatric disease and he was cleared for separation under the provisions of Army Regulation 635-212.

8.  On 1 July 1969, the applicant’s commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-212 for unfitness due to repeated commission of petty offenses, apathy, and inability to expend effort constructively.  He cited the applicant’s unsatisfactory performance of duty, failure to respond to repeated counseling sessions, intentional shirking of his duties, and behavior rendering him repeatedly subject to punitive actions as the basis for his recommendation.

9.  The commander also submitted a statement in which he indicated that the applicant had been a constant disciplinary problem that had required frequent counseling and close supervision for the simplest assignments.  He displayed a hostile attitude towards all authority, reacted against all normal military duties, and in doing so caused considerable delay and disruption in the accomplishment of the unit’s various support missions.

10.  The applicant was advised of his rights and after consulting with counsel, he waived all of his rights and declined the opportunity to submit a statement in his own behalf.

11.  On 12 July 1969, the appropriate authority (a brigadier general) approved the recommendation for discharge and directed that the applicant be furnished an Undesirable Discharge Certificate.

12.  Accordingly, on 17 July 1969, he was transferred to Fort Lewis, Washington where he was discharged that date under the provisions of Army regulation 635-212, for unfitness due to frequent involvement in incidents of a discreditable nature with military authorities and the issuance of an undesirable discharge.  He had served 1 year, 2 months, and 18 days of active service.

13.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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

15.  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 administrative discharge under the provisions of Army Regulation 635-212 was accomplished in accordance with applicable regulations with no indication of any violations of the applicant's rights.

2.  Accordingly, the type of discharge directed and the reasons appear to be appropriate considering all of the facts of the case.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service, his repeated offenses, the absence of mitigating circumstances, and the absence of evidence to support his contentions.  His service simply did not rise to the level of 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)                                         AR20110019757



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ABCMR Record of Proceedings (cont)                                         AR20110019757



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