IN THE CASE OF:	  

		BOARD DATE:	    18 April 2012

		DOCKET NUMBER:  AR20110020130 


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.

2.  The applicant states his undesirable discharge was caused by one single incident in which he was provoked after having served considerable honorable service.  He goes on to state that after an altercation with a fellow Soldier he panicked and went absent without leave (AWOL) and that his career went downhill after that.  He continues by stating that he was proud of his service and he is now totally disabled due to an automobile accident in 1989.  He also states he is a Christian and attends church regularly and he is now in need of Department of Veterans Affairs (VA) medical care.

3.  The applicant provides two third-party letters of support and copies of his
DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 in Atlanta, GA on 1 October 1964 for a period of 3 years.  He completed his one-station unit training as an infantry indirect fire crewman at Fort Gordon, GA and he was transferred to Germany on 17 February 1965.  He was advanced to the pay grade of E-3 on 1 June 1965.

3.  On 7 October 1965, he was honorably discharged for the purpose of immediate reenlistment.  He had served 1 years and 7 days of total active service.

4.  On 8 October 1965, he reenlisted for a period of 6 years and assignment to Fort Benning, GA.

5.  Between 26 January and 18 November 1966, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice was imposed against him on at least three occasions for three periods of AWOL.

6.  He departed Germany on 21 December 1966 and he was transferred to Fort Benning.

7.  On 20 September 1968, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty.

8.  On 25 September 1967, he was convicted by a special court-martial of being AWOL from 1 July to 18 July 1967, from 20 July to 28 July 1967, and for breaking restriction.

9.  On 17 January 1968, NJP was imposed against him for being drunk in Columbus, GA on 6 and 10 January 1968.

10.  On 19 March 1968, he was convicted by a special court-martial of being AWOL from 20 January to 11 February 1968, from 20 February to 5 March 1968, and breaking restrictions.

11.  On 1 August 1968, he was convicted by a special court-martial of being AWOL from 11 June to 15 June 1968 and violating his parole.


12.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records as they were loaned to the VA in Atlanta, GA on 22 June 1976.

13.  However, the applicant’s records contain a DD Form 214 that shows he was discharged on 1 October 1968 under the provisions of Army Regulation 635-212 for unfitness based on a an established habit of shirking.  He had served 3 years, 5 months, and 21 days of total active service with 194 days of time lost due to AWOL and confinement.

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

15.  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.

16.  Army Regulation 635-200, 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.

17.  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.  In the absence of evidence to the contrary, it must be presumed that 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 and supporting documents 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 an honorable or a general discharge.

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

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)                                         AR20110020130



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ABCMR Record of Proceedings (cont)                                         AR20110020130



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