IN THE CASE OF:	  

		BOARD DATE:	  19 July 2012

		DOCKET NUMBER:  AR20120001583 


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 (UD) of 7 October 1969 be upgraded.  

2.  The applicant states his UD should be upgraded based on the fact he received an honorable discharge (HD) on 17 March 1968.  He claims his going absent without leave (AWOL) was the result of severe family problems.  

3.  The applicant provides DD Forms 214 (Armed Forces of the United States Reports of Transfer or Discharge), dated 17 March 1968 and 7 October 1969. 

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’s record shows he was initially inducted into the Army on 
28 June 1967, and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was reclassified into MOS 76Y (Supply Clerk) in December 1967.  

3.  The applicant served for 8 months and 20 days until being honorably discharged on 17 March 1968 for the purpose of immediate enlistment.  The 
DD Form 214 he was issued at the time shows he held the rank of private first class and had earned the National Defense Service Medal.  On 18 March 1968, the applicant enlisted in the Regular Army for 3 years.  

4.  The applicant’s record shows he was first advanced to the rank of private first class (PFC)/E-3 on 9 January 1968, and that this is the highest rank he held while serving on active duty.

5.  The record shows the applicant earned the NDSM and Marksman Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His disciplinary history includes three separate special court-martial (SPCM) convictions between 18 June 1968 and 13 August 1969, all for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for four separate periods of AWOL between 24 April 1968 and 17 June 1969.  

6.  The applicant’s disciplinary history during the enlistment period under review includes his accrual of 351 days of time lost during six separate periods of AWOL and confinement between 23 September 1968 and 14 July 1970.  It also includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on 31January 1969 for being absent from his unit without proper authority on 18 December 1968.  

7.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does include a properly-constituted DD Form 214 that shows the applicant was discharged under the provisions of Army Regulation 635-212 (Personnel Separations) by reason of unfitness.  It further shows he completed 7 months and 6 days of creditable active duty service and accrued 351 days of time lost due to AWOL and confinement during the period of enlistment under review.

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


9.  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.

10.  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 to upgrade his discharge because of his prior honorable discharge has been carefully considered.  However, there is insufficient evidence to support this request.  

2.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant's final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  Therefore, government regularity in the discharge process is presumed.
3.  The applicant's DD Form 214 shows he was discharged by reason of unfitness under the provisions of Army Regulation 635-212.  In connection with this type discharge, the applicant would have been afforded the opportunity to consult with legal counsel and to have his case considered by a board of officers.  In the absence of evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record confirms the applicant’s short period of honorable service between 28 June 1967 and 17 March 1968 was properly documented in the DD Form 214 he was issued on 17 March 1968.  His record for the period of enlistment under review documents no acts of valor or significant achievement; however, it does reveal an extensive disciplinary history that includes his acceptance of NJP and three separate SPCM convictions.  Given this extensive record of misconduct, the UD he received was normal and appropriate under the regulatory guidance in effect at the time.  As a result, his record was not sufficiently meritorious to support the issue of a GD or HD by the separation authority at the time, nor is it sufficient to support an upgrade at his discharge at this late date.  

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)                                         AR20120001583



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ABCMR Record of Proceedings (cont)                                         AR20120001583



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