BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110020137 


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 an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states that he was an orderly in basic combat training and a squad leader during Military Police (MP) School.  Additionally, he was injured in the barracks by another trainee and he made a decision not to return. 

3.  The applicant provides his DD Form 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's records show he enlisted in the Regular Army on 11 August 1964 and he held military occupational specialty 95B (MP).  

3.  On 21 December 1965, he was convicted by a special court-martial of one specification of disobeying a lawful order and five specifications of being absent without leave (AWOL) from 4 January to 3 February 1965, 10 to 26 March 1965, 9 April to 5 May 1965, 29 May to 3 July 1965, and 20 August to 11 October 1965. The court sentenced him to confinement at hard labor for 6 months (suspended), a reduction to private/E-1, and a forfeiture of $62.00 pay per month for six months.  The convening authority approved his sentence on 6 January 1966.

4.  On 21 March 1966, the applicant’s immediate commander recommended that the applicant be discharged from military service under the provisions of Army Regulation 635-208 (Personnel Separations), for unfitness, citing his prior misconduct to include his court-martial convictions and his multiple AWOL offenses.  The immediate commander recommended the issuance of an Undesirable Discharge Certificate. 

5.  On 29 March 1966, the applicant acknowledged he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel but he elected to decline.  He also acknowledged he understood if an under other than honorable conditions discharge was issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He waived his right to a board of officers, and to appear before a board of officers, and declined to submit a statement on his own behalf.

6.  On 11 April 1966, the interviewing officer indicated that he personally interviewed the applicant and discussed his pending separation action.  He remarked that the applicant had rejected all attempts at rehabilitation.  The applicant stated "If I thought my discharge was not going to be approved then I would be gone as fast as I could to get off post" and "I will not go back to duty for anybody." 

7.  On 19 April 1966, the applicant's immediate and intermediate commanders recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

8.  On 27 April 1966, the separation authority approved the applicant's elimination from the Army under the provisions of Army Regulation 635-208 and directed that he be furnished an Undesirable Discharge Certificate.  On 4 May 1966, the applicant was accordingly discharged.  

9.  The DD Form 214 he was issued at the time confirms he was discharged in accordance with Army Regulation 635-208 and issued an Undesirable Discharge Certificate.  This form further shows the applicant completed 6 months and 5 days of creditable active military service and he had 439 days of lost time.

10.  There is no indication in his available records that shows he was injured in the barracks by another Soldier or that the injury resulted in his extensive history of AWOL. 

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation. 

12.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) 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.

13.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded was carefully considered but it was found without merit.  

2.  The applicant's records reveal a disciplinary history which includes multiple instances of being AWOL and a court-martial conviction.  Accordingly, his immediate commander initiated separation action against him.  His discharge was processed in accordance with applicable regulations and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  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)                                         AR20110020137



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ABCMR Record of Proceedings (cont)                                         AR20110020137



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