BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110021898 


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.

2.  He states that the charges for which he was tried by Special Courts-Martial resulted from his lifelong history of chronic alcoholism.  This fact was never brought out during the courts-martial.  He attests that he has been a responsible citizen since his discharge.

3.  He provides three character reference letters from two friends and his landlord.

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.  Following a period of 10 months and 9 days of service in the Army National Guard, the applicant enlisted in the Regular Army on 30 November 1964.  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, at the time of separation, he held the rank/grade of private/E-1.

3.  The applicant served in the Republic of Korea from 10 January through 6 February 1966.

4.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for operating a motor vehicle without a valid operator's license and for stealing two packages of cigarettes from another Soldier.

5.  His record also shows he was arraigned and tried by two special courts-martial which found him guilty of four specifications of violating Article 121 of the UCMJ by stealing uniform items from two fellow junior enlisted Soldiers and two noncommissioned officers.

6.  On 8 April 1966, the applicant underwent a mental hygiene evaluation.  The examining psychiatrist found him to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.  The psychiatrist also determined there were no disqualifying mental defects sufficient to warrant disposition through medical channels.  He added that although the applicant had no acute psychiatric illness, he could possibly have a chronic personality disorder.  He noted these were not generally disabling or medically disqualifying and usually caused little or no impairment of performance.

7.  On 12 December 1966, the applicant underwent a mental hygiene evaluation.
The examining psychiatrist found him to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.  The psychiatrist also determined there were no disqualifying mental defects sufficient to warrant disposition through medical channels.  He concluded that the applicant was cleared from a psychiatric viewpoint for administrative action as deemed appropriate by his command.




8.  The applicant's record contains statements rendered by two of his former officers-in-charge wherein they state he/his:

* could not follow the simplest of orders without numerous reminders or constant supervision
* general appearance and conduct reflected an attitude of immaturity and was manifested in his lack of comprehension of instructions
* received numerous complaints about the quality of his work
* had stolen bundles of clothing from the Quartermaster laundry
* was incapable of adjusting to any job within the military
* performance was unsatisfactory
* assignment to another unit would only result in similar problems
* was unreliable and instable

9.  On 26 January 1967, the applicant's unit commander notified him that action was being initiated to separate him under the provisions of Army Regulation 635-212 for unfitness.  The applicant was informed of the basis for the recommendation and was advised of his right to present his case before a board of officers, to be represented by counsel, to submit written statements in his own behalf, or to waive these rights in writing.  The applicant acknowledged receipt of this notification on the same date.

10.  Having been advised by counsel on the basis of the contemplated action to separate him for unfitness, the applicant acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He indicated he further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and state laws, and that he could expect to encounter substantial prejudice in civilian life.  The applicant also elected to:

* waive consideration of his case by a board of officers
* waive personal appearance before a board of officers
* not to submit statements in his own behalf
* waive representation by civilian or military counsel

11.  On 21 February 1967, he underwent a pre-separation medical examination and indicated in item 20 (Have you ever had or have now) of Standard Form 89 (Report of Medical History) that he had not and did not have an "excessive drinking habit."  His Standard Form 88 (Report of Medical Examination) shows that the examining physician determined he did not have any physical or mental defects which warranted medical disposition.

12.  His record contains a DA Form 1811 (Physical and Mental Status on Release from Active Service), dated 5 April 1967, which shows he was considered physically qualified for separation.

13.  Headquarters, U.S. Army Infantry Center, Fort Benning, GA, Special Orders Number 81, dated 7 April 1967, ordered the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness for frequent incidents of discreditable nature, effective 10 April 1967, under conditions other than honorable with the issuance of an Undesirable Discharge Certificate.

14.  The DD Form 214 issued to the applicant at the time confirms he was discharged accordingly.  He had completed a total of 2 years, 1 months, and 23 days of creditable active military service and he had 221 days of lost time due to being AWOL and in confinement.

15.  The applicant's record is void of any evidence showing he suffered from alcoholism during his period of service or that any of his infractions were alcohol related.

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

17.  The applicant provides three character reference letters from two friends and his landlord wherein each of them attests to his current sobriety and praise him for being an good neighbor and friend who is hard working, honest, trustworthy, responsible, generous, intelligent, and helpful.

18.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.


19.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel.  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.

20.  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 post-service accomplishments are noted and his contentions regarding his alcoholism were considered.  However, his record is void of any evidence showing he suffered from alcoholism during his period of service or that any of his infractions were alcohol related.  Additionally, there is no indication that he attempted to seek assistance from his chain of command for alcoholism or to take advantage of counseling services which were readily available.  

2.  His record reveals a disciplinary history that includes his acceptance of NJP under the provisions of Article 15 of the UCMJ on two occasions and conviction by two special courts-martial.

3.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally undesirable and the applicant was made aware of this prior to his discharge.

5.  In view of the foregoing, there is no basis for upgrading the applicant's undesirable discharge to either a general or an honorable 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)                                         AR20110021898





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ABCMR Record of Proceedings (cont)                                         AR20110021898



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