IN THE CASE OF:	  

		BOARD DATE:  26 July 2012

		DOCKET NUMBER:  AR20120001717 


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 (UD) to a general discharge.

2.  The applicant states that his reason for signing up for enlisting was destroyed when his mother died and his wife left him for his friend.  He applied for a hardship discharge, but the process was taking too long and he wanted to get back and salvage his marriage.  He accepted his discharge to save his marriage and raise his kids.  He has been sick and needs a liver.  He also wants to send his grandchildren to college and complete some courses. 

3.  The applicant provides no additional 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’s military record shows he was inducted into the Army of the United States on 20 August 1968.  He was advanced to pay grade E-2 on 25 October 1968.  He did not complete advanced individual training for award of a military occupational specialty.

3.  On 12 December 1968, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 30 November to 6 December 1968.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of $30.00 pay for 1 month.  The sentence was approved on 12 December 1968 and ordered executed.

4.  On 4 February 1969, he was convicted by a special court-martial of one specification of being AWOL from 8 to 16 January 1969.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of $46.00 pay for 4 months.  The sentence was approved on 11 February 1969 and ordered executed.

5.  On 11 August 1969, he was convicted by a special court-martial of one specification of being AWOL from 30 May to 21 July 1969.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $55.00 pay for 6 months.  The sentence was approved on 12 August 1969 and ordered executed.

6.  On 15 August 1969, the applicant's company commander notified the applicant of the proposed action to separate him from the Army under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.  

7.  On 15 August 1969, after consulting with counsel, the applicant acknowledged the proposed separation action.  He waived his rights and elected not to submit a statement in his own behalf.  He acknowledged that he may expect to encounter substantial prejudice in civilian life if a general discharge is issued to him.  He also understood that as the result of an UD, he may be ineligible for any or all benefits as a veteran under both Federal and State laws.

8.  On 15 August 1969, the applicant's company commander recommended approval of the applicant's separation with the issuance of a UD.  The company commander stated that based upon the applicant’s failure to function as an 

effective Soldier upon release from the Correctional Training Facility, Fort Riley, KS; 3 periods of AWOL; 1 summary court-martial; 2 special courts-martial; and his complete lack of motivation for rehabilitation, a UD was recommended for the enlisted member.

9.  In August 1969, the separation authority approved the applicant’s discharge and directed the issuance of a UD Certificate and reduction to pay grade E-1.

10.  He was discharged in pay grade E-1 on 3 September 1969, under the provisions of Army Regulation 635-212, for unfitness, with a UD.  He was credited with completing 4 months and 27 days of active service and 230 days of time lost.

11.  There is no evidence he submitted a request for a hardship discharge during his period of active duty.

12.  On 17 November 1972, the Army Discharge Review Board denied his request for an upgrade of his discharge.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  A UD was normally considered appropriate for individuals separated by reason of unfitness.

14.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded has been carefully considered.  However, the evidence of record shows he was convicted 

by 1 summary court-martial and 2 special courts-martial of periods of AWOL.  His company commander felt he should be eliminated from the service due to his failure to function as an effective Soldier, 3 periods of AWOL, and his complete lack of motivation for rehabilitation.

2.  The evidence of record also shows after consulting with counsel, he acknowledged the proposed separation action for unfitness.  He waived his rights and elected not to submit a statement in his own behalf.  He also acknowledged the effects of the issuance a UD.  He was discharged accordingly on 3 September 1969.

3.  He has provided no evidence or argument to show his UD should be upgraded to a general discharge.  His military records contain no matter upon which an upgrade should be granted.  It appears his failure to meet acceptable standards for retention diminished the quality of his service below that meriting a general or an honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

5.  His desire to have his UD upgraded so that he can qualify for benefits is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for burial, medical, and/or other benefits administered by other Federal and State agencies.

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)                                         AR20120001717



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ABCMR Record of Proceedings (cont)                                         AR20120001717



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