IN THE CASE OF:	  

		BOARD DATE:  19 June 2012

		DOCKET NUMBER:  AR20120000457 


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, in effect, that his undesirable discharge be upgraded to a general discharge and that his Parachutist Badge be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that his commander misrepresented the facts regarding his duty performance during the administrative board proceedings and contends that he was discriminated against during his service.  He also contends that his service warrants at least a general discharge and that his award of the Parachutist Badge should be added to his DD Form 214.    

3.  The applicant provides an eight-page statement explaining his application, a copy of his DD Form 214, a partial copy of his DA Form 20 (Enlisted Qualification Record) and a partial copy of his separation proceedings.

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 11 March 1971 for a period of 2 years and was transferred to Fort Campbell, Kentucky to undergo his basic training.  However, while in the reception station he extended his enlistment for an additional year in return for training as a petroleum storage specialist and airborne training.

3.  He completed his basic training and was transferred to Fort Lee, Virginia to undergo his advanced individual training (AIT).

4.  On 17 June 1971, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order from his first sergeant and failure to go to his place of duty.

5.  He completed his AIT and was transferred to Fort Benning, Georgia where he completed his airborne training and was awarded the Parachutist Badge in Special Order Number 204 issued by the U.S. Army Infantry School.  He was transferred to Fort Bragg, North Carolina for his first duty assignment.

6.  On 5 October 1971 and 11 May 1972, NJP was imposed against the applicant for three specifications of failure to go to his place of duty.

7.  On 12 July 1972 he was convicted pursuant to his plea by a summary      court-martial of being absent without leave (AWOL) from 1 June to 28 June 1972.  He was sentenced to confinement at hard labor for 30 days, reduction to the pay grade of E-1, and a forfeiture of $100.00.  However, the convening authority suspended the portion of the sentence pertaining to confinement at hard labor for 30 days for a period of 90 days unless sooner vacated. 

8.  On 17 November 1972, he was convicted pursuant to his plea by a special court-martial of being AWOL from 1 August to 9 August 1972, behaving with disrespect towards a superior commissioned officer, and wrongfully appearing in the improper uniform.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of pay for 4 months.  He was transferred to the U.S. Army Retraining Brigade at Fort Riley, Kansas to serve his confinement.  On 
21 December 1972, orders were published withdrawing the applicant’s parachutist special qualification identifier (SQI) of “P.” 

9.  On 1 March 1973, he was transferred to Fort Lee, Virginia for duty as a petroleum storage specialist.

10.  On 3 May 1973, NJP was imposed against him for being AWOL from 2 May to 3 May 1973 and for being absent from his place of duty.

11.  On 11 May 1973, NJP was imposed against him for being absent from his place of duty.

12.  On 23 May 1973, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 13, for unfitness based on his frequent involvement in incidents of a discreditable nature with military authorities.  He cited as the basis for his recommendation the applicant’s failure to respond to frequent counseling sessions and his disciplinary record.

13.  After consulting with defense counsel, the applicant elected to appear before a board of officers and declined the opportunity to submit a statement in his own behalf. 

14.  The applicant appeared before a board of officers, represented by defense counsel, on 11 July 1973.  His commander was the only witness who testified against the applicant, and his counsel was afforded the opportunity to cross-examine all witnesses.  The applicant also provided a witness to testify in his behalf who was a retired lieutenant colonel.  The applicant  testified in his own behalf and responded to questions by the board members.  After deliberation by the board of officers, the board recommended that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness and issued an Undesirable Discharge Certificate.

15.  On 6 August 1973, the appropriate authority (a major general) approved the findings and recommendations of the board of officers and directed that the applicant be issued an Undesirable Discharge Certificate.

16.  Accordingly, he was discharged under other than honorable conditions on 9 August 1973 under the provisions of Army Regulation 635-200, chapter 13, for unfitness.  He had served 1 year, 10 months, and 17 days of active service and had 192 days of lost time due to AWOL and confinement.  His DD Form 214 issued at the time of his discharge shows that he was awarded the National Defense Service Medal and his marksmanship badge.

17.  A review of his official records failed to show any evidence of the applicant’s Parachutist Badge being revoked or withdrawn.

18.  There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

19.  Army Regulation 635-200 (Personnel Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contained the policy and outlined the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction; an established pattern of shirking; and/or an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

20.  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 administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contention that his commander misrepresented the facts surrounding his duty performance has been noted and appears to lack merit.  While it is difficult at best to determine what actually occurred 39 years ago, the applicant and his counsel were afforded the opportunity to challenge the commander’s statement at the time of the board proceedings and did not do so at the time.  The applicant has not submitted evidence that disputes the board proceedings conducted at the time.

4.  The applicant's supporting documents and overall record of service has been considered.  However, the repeated nature of his misconduct during his period of service is not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply does not rise to the level of a general discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his discharge.

6.  However, his contention that his Parachutist Badge should be added to his DD Form 214 has been noted and appears to have merit.  There is no evidence in his official records showing that his Parachutist Badge was revoked when his SQI was withdrawn and he is thus entitled to have it entered on his DD Form 214 at this time.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X__ _  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding his award of the Parachutist Badge to his DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his undesirable discharge to a general discharge.  




      __________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)                                         AR20120000457





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ABCMR Record of Proceedings (cont)                                         AR20120000457



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