BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20120000472 


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 his undesirable discharge be upgraded.

2.  The applicant states:

* He was tricked into signing his discharge papers
* His commanding officer and first sergeant told him his mother was dying so he signed the papers
* He should have been allowed a fair hearing
* He was told his discharge would be changed to honorable in 6 months
* He started the first marching band at Fort Sam Houston since World War II
* He was the feather weight boxing champion in 1969 and 1970
* Prejudice was prevalent
* He had an outstanding military record  

3.  The applicant provides no documentary evidence.

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 30 December 1968 for a period of 3 years.  He completed his training and was awarded military occupational specialty 91A (Medic).  

3.  On 25 February 1970, nonjudicial punishment (NJP) was imposed against the applicant for assault.

4.  On 5 June 1970, NJP was imposed against the applicant for absenting himself from his unit for 10 hours and failure to repair.  

5.  On 15 June 1970, he was convicted by a summary court-martial of failure to repair and breaking restriction.  He was sentenced to forfeit $92.00 pay for 
1 month and to perform hard labor without confinement for 45 days.  On 15 June 1970, the convening authority approved only so much of the sentence as provided for a forfeiture of $75.00 pay for 1 month and to perform hard labor without confinement for 45 days.  

6.  On 1 July 1970, 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 discharge was recommended because of established patterns of shirking and the applicant's negative attitude towards the Army showed he had no rehabilitation potential.

7.  On 7 July 1970, 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 not to submit a statement in his own behalf.

8.  On 23 July 1970, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.

9.  On 30 July 1970, 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 1 year, 
7 months, and 1 day of total active service.
10.  On 27 March 1973, the Army Discharge Review Board denied his request for a discharge upgrade.

11.  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.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

13.  Army Regulation 635-200, 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.

14.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was told his discharge would be changed to honorable in 6 months.  However, a discharge upgrade is not automatic.

2.  He contends he was tricked into signing his discharge papers and he should have been allowed a fair hearing.  However, the evidence shows he consulted with counsel on 7 July 1970.  He had an opportunity to submit a statement or request a board of officers in which he could have voiced his concerns, but he elected not to do so.

3.  There is no evidence and he provided no evidence which shows he was a victim of racial discrimination.

4.  His record of service included two NJPs and one summary court-martial conviction.  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.  Therefore, his record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to an honorable or a general discharge.

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'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)                                         AR20120000472



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ABCMR Record of Proceedings (cont)                                         AR20120000472



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