IN THE CASE OF:	  

		BOARD DATE:	  23 May 2012

		DOCKET NUMBER:  AR20110023968 


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 her undesirable discharge.

2.  The applicant states she was dismissed for participating in protesting the Vietnam War.  She was in the crowd listening to the speakers, not in uniform, when someone asked if she could hold their sign while she tied her shoes.  A Criminal Investigation Division Command (CID) agent took a picture of the incident which was used to dismiss her from the Army with an undesirable discharge.

3.  She further states she was previously assigned to Fort Gordon, GA, where the boys came when they were stabilized enough to return to the states.  She saw many sad scenarios played out over and over.  She was young and definitely battle hardened.

4.  The applicant provides no documentary evidence in support of her application.

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 on 27 February 1969.  She was trained in and awarded military occupational specialty (MOS) 71B (Clerk Typist).

3.  On 18 December 1969, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 5-15 December 1969.

4.  Summary Court-Martial Order Number 635, issued by Headquarters, Group Command, U.S. Army Training Center, Infantry, Fort Ord, CA, dated 23 April 1970, shows the applicant pled guilty and she was found guilty of being AWOL from 20 March 1970 to 13 April 1970.

5.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent    to Normal Date ETS) of her DA Form 20 (Enlisted Qualification Record), shows she was AWOL from 9-15 December 1969, 19 March-13 April 1970, and from     14-15  September 1971, for a total of 36 days.

6.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding her discharge processing.  The record does include a DD Form 214 that shows she was discharged on 9 November 1971 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) with an undesirable discharge. She was assigned a separation program number of 28B, that relates to unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities.  It further shows she completed 2 years, 7 months, and 8 days of total active service with 36 days of time lost due to AWOL.

7.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within that board’s 15-year statute of limitations.

8. 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 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of 

a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure 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.

9.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.

	a.  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.

	b.  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 request for upgrade of her undesirable discharge has been carefully considered; however, there is insufficient evidence to support her request.

2.  The applicant argues she was dismissed from the Army with an undesirable discharge based on a picture taken by CID, while not uniform, protesting the Vietnam War.  Her disciplinary record shows she received NJP and a summary court-martial for two offenses of AWOL that totaled 36 days of time lost.

3.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant's final discharge processing.  However, it does include a DD Form 214 that identifies the reason for and characterization of her discharge.  Therefore, government regularity in the discharge process is presumed.

4.  The applicant's DD Form 214 shows she was discharged for unfitness under the provisions of Army Regulation 635-212.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  Based on her overall record of indiscipline, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory.

6.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110023968



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ABCMR Record of Proceedings (cont)                                         AR20110023968



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