IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110022633 


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 the conditions and unjust way the people of South Korea were treated by our troops cause him to leave his assigned post, as he just could not handle it anymore.  He further states he was young and at the age of 17, he tried to live the fast life of women and too much liquor.  He acknowledges that what he did was wrong and he wishes he could change everything.  He concludes that he loves his Country and the people who serve it.

3.  He provides a character reference letter from a Veterans' Case Manager from the Mesilla Valley Community of Hope located in Las Cruces, NM.

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 25 December 1948 and enlisted in the Regular Army on 17 August 1966 at age 17 years, 7 months, and 24 days.  The highest rank/grade he attained while serving on active duty was private/E-2.  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 9 February through 23 September 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 stealing money from another Soldier and for absenting himself from his unit without authority in an absent without leave (AWOL) status.

5.  His record also shows he was arraigned and tried by a special court-martial which found him guilty of two specifications of violating Article 86 of the UCMJ by departing his unit in an AWOL status and two specifications of violating Article 134 of the UCMJ by wrongfully and without authority wearing upon his uniform the insignia grade of a sergeant and wrongfully having in his possession with intent to deceive a military pass.

6.  His record contains a DA Form 19-12 (Military Police Report), dated 15 June 1967, which shows he was arrested for the following offenses:

* Failing to report to his new unit of assignment
* Wrongfully having in his possession another Soldier's ration card
* Wrongfully having in his possession another Soldier's meal card
* Wrongfully having in his possession a fraudulent pass made out in another Soldier's name whereon the applicant had forged a superior's signature

7.  The applicant's unit commander notified him that action was being initiated to require him to appear before a board of officers convened under the provisions of Army Regulation 635-212 for the purpose of determining whether he should be discharged before the expiration of his term of service 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.

8.  On 3 July 1967, the applicant's unit commander recommended that he be required to appear before a board of officers convened under the provisions of Army Regulation 635-212 for the purpose of determining whether he should be discharged before the expiration of his term of service for unfitness.  The commander stated the bases for the recommendation were the applicant's aforementioned repeated offenses and his additional offense of escaping from the stockade.  The commander opined that his behavior was not due to his incapacity to become a satisfactory Soldier within the meaning of unsuitability. 

9.  On 5 July 1967, the applicant underwent a mental hygiene evaluation.  The examining psychiatrist noted the applicant described a traumatic family background, with both parents being alcoholic.  He also noted that as the applicant discussed his difficulties he minimized his responsibility and tended to blame "others."  There was no evidence of a thought disorder; mood and affect were within normal limits, and his judgment was immature and impulsive.  The examining physician findings and conclusions regarding the applicant's mental condition were as follows:

* No disease was found
* He had a history of poor social, occupational, and military adjustment
* He had minimal standards and expected little of himself, and no motivation to change or improve
* From a psychiatric standpoint, there was insufficient evidence to warrant a specific diagnosis
* There were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels
* He was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings
* He recommend the applicant be considered for elimination for the service and cleared him for administrative action as deemed appropriate by his command

10.  On 18 August 1967, 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

* submit statements in his own behalf
* waive representation by civilian or military counsel

11.  The applicant's record contains a statement, dated 18 August 1967, wherein he attested the grounds of his discharge were basic and an undesirable discharge was too harsh.  He attested that he had not been violent or stolen anything during his time in the service.  He contended that he had always worked hard and tried to get ahead.  He opined that the reasons he had gone AWOL would be considered acceptable by a good deal of people in the Army.  He concluded that he desired a general discharge in order to:

* attend college
* remain eligible for Federal and state veterans benefits
* become a responsible citizen
* attain and maintain a good civilian job

12.  On 11 September 1967, the Commanding General directed the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness with the issuance of an Undesirable Discharge Certificate.

13.  The DD Form 214 issued to the applicant at the time confirms he was discharged accordingly.  He had completed a total of 8 months and 22 days of creditable active military service and he had 144 days of lost time due to being AWOL and in confinement.

14.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge.  On 20 December 1973, The Adjutant General notified the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined that he was properly discharged.

15.  The applicant provides a character reference letter from a Veterans Case Manager who states, in effect, he has known the applicant for more than 2 years and attests that the applicant is one of the best people he knows.  He goes out of his way to help other veterans in any way that he can.  Due to some unfortunate circumstances beyond his control, the applicant ran into financial problems which resulted in the loss of his home and receiving an upgraded discharge would be beneficial toward improving his situation

16.  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.

17.  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.

18.  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 immaturity were considered.  However, his record is void of any evidence showing he was any less mature than many other Soldiers his age who completed their terms of service honorably. 

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, conviction by a special court-martial, and a subsequent arrest.

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)                                         AR20110022633





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ABCMR Record of Proceedings (cont)                                         AR20110022633



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