IN THE CASE OF:	  

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110021589 


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 honorable.

2.  The applicant states:

* he is fully aware he made a huge mistake which caused the Army to give him an undesirable discharge
* he has had years to think about what happened and he deeply regrets the events that led to his release from the service
* his life has been exemplary since that time
* he has had no legal troubles and has raised two children to be good and upstanding citizens
* he has owned and operated his own business until retiring this year
* his discharge has deprived him of many opportunities for service
* his punishment awarded to him has more than repaid the debt he owed the government
* he is ashamed to say he has an other than honorable discharge
* he wants the Board to consider the mindset of a young Soldier during the time of his service

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 was born on 23 February 1949.  He enlisted in the Regular Army on 21 July 1966 for a period of 3 years at 17 years of age.  He completed his training and was awarded military occupational specialty (MOS) 36K (wireman).  On 28 April 1967, he was honorably discharged for immediate reenlistment.  He reenlisted on 29 April 1967 for a period of 3 years.

3.  Between 27 September 1967 and 1 April 1968, nonjudicial punishment (NJP) was imposed against the applicant on four occasions for:

* being absent without leave (AWOL) from his unit
* being absent from his appointed place of duty
* being AWOL from 23 December 1967 to 24 December 1967
* disobeying a lawful command and communicating a threat

4.  On 12 April 1968, he was convicted by a special court-martial of failing to go to his appointed place of duty and assault.

5.  On 22 April 1968, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) due to habits and traits of character manifested by repeated commissions of petty offenses and habitual shirking.

6.  On 17 May 1968 after consulting with counsel, the applicant waived consideration of his case by a board of officers and waived a personal appearance.  He also acknowledged he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further understood that as the result of issuance of an undesirable discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement on his own behalf.

7.  On 29 May 1968, he was convicted by a summary court-martial of escaping from confinement.

8.  On 20 June 1968, the separation authority approved the recommendation for discharge and directed the issuance of an undesirable discharge.

9.  He was discharged accordingly on 6 July 1968 under the provisions of Army Regulation 635-212 for unfitness due to an established pattern for shirking.  He completed a total of 1 year, 8 months, and 22 days of total active service with 84 days of lost time.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(4) provided that members involved in an established pattern of shirking were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

12.  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.

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.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, it appears he successfully completed basic combat training and advanced individual training since he was awarded MOS 36K.

2.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  His record of service during his last enlistment included four NJPs, one summary court-martial conviction, one special court-martial conviction, and 84 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or 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 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)                                         AR20110021589



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ABCMR Record of Proceedings (cont)                                         AR20110021589



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