IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110025134 


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 his undesirable discharge to an honorable discharge.

2.  The applicant states he thinks he has suffered enough and deserves to have another chance at life.

3.  The applicant provides no documentary evidence in support of his 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 29 September 1967.  He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).
3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was initially advanced to the rank/grade of private (PV2)/E-2 on 1 December 1967, and this is the highest rank/grade he attained while serving on active duty.  It also shows he was reduced to private (PV1)/E-1 for cause on 26 July 1968, advanced back to PV2/E-2 on 15 October 1968, and reduced again to PV1/E-1 for cause on 20 December 1968.

4.  The applicant's disciplinary history includes conviction by a special court-martial (SPCM) on 26 July 1968 and 9 May 1969, and a summary court-martial (SCM) on 20 December 1968.  It also includes his accrual of 425 days of time lost due to three separate periods of being absent without leave (AWOL) between 2 April 1968 and 23 April 1969, and four periods of confinement between 6 June 1968 and 4 August 1969.

5.  On 4 August 1969, the unit commander notified the applicant of his intent to recommend his discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness.

6.  On 6 August 1969, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, its effects, and the rights available to him.  Subsequent to this counseling, the applicant waived his right to have his case considered by and his right to a personal appearance before a board of officers.  He also waived his right to representation by appointed counsel and elected not to submit statements in his own behalf.

7.  The unit commander submitted a recommendation for the applicant's discharge for unfitness under the provisions of Army Regulation 635-212.  As the basis for taking the separation action, the commander cited the applicant's frequent incidents of a discreditable nature with military authorities as evidenced by his court-martial record, and his AWOL and confinement history.

8.  On 14 August 1969, the separation authority approved the applicant's discharge for unfitness under the provisions of Army Regulation 635-212 and directed he receive an Undesirable Discharge Certificate.

9.  On 22 August 1969, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he completed 8 months and 22 days of total active service with 425 days of time lost due to AWOL and confinement.


10.  On 18 November 1981, after carefully reviewing the applicant's entire record and the issues he presented, the Army Discharge Review Board (ADRB) determined the applicant's discharge was proper and equitable and denied the applicant's appeal for an upgrade of his discharge.

11.  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 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).  The separation authority could authorize a general discharge under honorable conditions or an honorable discharge if warranted by the member's record of service.  However, when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority 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 an upgrade of his UD has been carefully considered.  However, there is insufficient evidence to support this claim.


2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history that includes an SCM conviction, two SPCM convictions, and accrual of 425 days of time lost due to AWOL and confinement.

4.  Given the applicant's undistinguished record of service and his extensive record of misconduct, the undesirable discharge he received accurately reflects the overall quality of his service.

5.  In view of the foregoing, there is no 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)                                         AR20110025134



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ABCMR Record of Proceedings (cont)                                         AR20110025134



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