IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20120000449 


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 a general discharge.

2.  The applicant states:

* it has been over 40 years since he was discharged from active duty
* he has stayed out of trouble since then

3.  The applicant provides five character reference letters.

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 19 June 1968 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 11H (infantry direct fire crewman).  On 4 April 1969, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 5 April 1969 for a period of 6 years.

3.  On 27 June 1969, nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for absenting himself from his appointed place of duty.

4.  On 21 August 1969, NJP was imposed against the applicant for being absent without leave (AWOL) from 14 August 1969 to 16 August 1969.

5.  On 30 September 1970, NJP was imposed against the applicant for absenting himself from his appointed place of duty.
 
6.  On 23 January 1971, he was convicted by a summary court-martial of being AWOL from 31 December 1970 to 8 January 1971.  He was sentenced to forfeiture of $150.00 pay for 1 month, to perform extra duty for 45 days, and reduction to the rank/grade of private first class (PFC)/E-3.  On 26 January 1971, the convening authority approved the sentence.

7.  He again departed AWOL, on 30 March 1971, and he returned to military control on 11 October 1971.  On 22 October 1971, charges were preferred against the applicant for this period of AWOL.  Trial by special court-martial was recommended.

8.  On 3 November 1971, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations -Discharge - Unfitness and Unsuitability) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander stated the applicant's 203 days of time lost and his other offenses met the criteria for unfitness.

9.  On 4 November 1971, after consulting with counsel and being advised of his recommended separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected to submit a statement in his own behalf; however, but his statement is not available for review.

10.  On 10 November 1971, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.  His special court-martial charge for AWOL was subsequently dropped.

11.  On 2 December 1971, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  He completed 2 years, 10 months, and 21 days of total active service with 203 days of time lost.

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

13.  He provided character reference letters from a co-worker and friends who state he is:

* kind and considerate
* a real hero and great influence on others
* a good and honest person
* thoughtful

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities was subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 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 contends it has been over 40 years since his discharge.  However, the passage of time is normally not a basis for upgrading a discharge.

2.  The character reference letters submitted on behalf of the applicant failed to show his discharge was inequitable or unjust and should be upgraded.

3.  He also contends he has stayed out of trouble since his discharge.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  His record of service included three NJPs, one summary court-martial conviction, 203 days of time lost, and preferred charges for a special court-martial.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general 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)                                         AR20120000449



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ABCMR Record of Proceedings (cont)                                         AR20120000449



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