BOARD DATE:	 31 May 2012 

		DOCKET NUMBER:  AR20110024543 


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 general discharge to an honorable discharge.

2.  He states he was young and could not adjust to the military.  He had difficulty taking orders.  He was a good Soldier.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a Department of Veterans Affairs (VA) letter.

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 12 October 1947.  He was inducted into the Army on 26 May 1966.  He was awarded the military occupational specialty of 51A (Construction Helper).  The highest rank/grade he held was private/E-2.

3.  On 25 June 1966, he accepted nonjudicial punishment (NJP) for striking another Soldier in the face with his fist.

4.  On 31 October 1966, he accepted NJP for being absent from his unit without proper authority. 

5.  On 7 December 1966, pursuant to his guilty plea, he was convicted by a summary court-martial of being absent without leave (AWOL) from 21 November 1966 to 27 November 1966 (when apprehended by military authorities).

6.  On 1 April 1967, he accepted NJP for being AWOL from 26 March 1967 to 28 March 1967.

7.  On 25 May 1967, pursuant to his guilty pleas, he was convicted by a special court-martial of being absent from his unit without proper authority on three different occasions.

8.  On 14 August 1967, he accepted NJP for being absent from his unit without proper authority.

9.  On 25 November 1967, pursuant to his guilty pleas, he was convicted by a special court-martial of:

* being absent from his unit without proper authority on two different occasions
* being AWOL from 21 October 1967 to 7 November 1967
* wrongfully appropriating a 2 1/2 ton government truck

10.  On 6 December 1967, the applicant's commander advised him of his intentions to begin proceedings to eliminate him from the service under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) because of unfitness.  He was advised of his rights to present his case before a board of officers, to submit statements in his own behalf, to be represented by counsel, and the right to waive the aforementioned in writing.

11.  On 19 December 1967, he acknowledged he was advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-212.  He acknowledged he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued.  Having been advised by counsel, the applicant waived all his rights and elected not to submit a statement in his own behalf.

12.  On 18 May 1968, the separation authority approved the applicant's discharge from the service under the provisions of Army Regulation
635-212 and directed the issuance of a General Discharge Certificate.

13.  On 24 May 1968, he was given a general discharge under the provisions of Army Regulation 635-212 with his service characterized as under honorable conditions.  His DD Form 214 shows he completed a total of 1 year, 4 months, and 2 days of active military service with 237 days of time lost.

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

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel found to be unfit for further military service.  Paragraph 6 stated an individual was subject to separation for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  

16.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s age at the time he served was noted.  However, many Soldiers served at a young age and went on to complete their service and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

2.  He was discharged under the provisions of Army Regulation 635-212.

   a.  He received NJP four times for incidents including being absent from his unit without proper authority on numerous occasions, striking another Soldier in the face with his fist, and being AWOL.
   
   b.  He was convicted by court-martial on three occasions for offenses including being absent from his unit without proper authority on numerous occasions, being AWOL, and wrongfully appropriating a 2 1/2 ton government truck.

   c.  His records show he accrued a total of 237 days of time lost.  
 
3.  Based on the applicant's misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.   

4.  In view of the foregoing, he is not entitled to 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)                                         AR20110024543



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ABCMR Record of Proceedings (cont)                                         AR20110024543



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