IN THE CASE OF:  

		BOARD DATE:	    31 July 2012

		DOCKET NUMBER:  AR20120002788


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.

2.  The applicant states his mother was terminally ill with a tumor.  He requested leave, but the request through the Red Cross would have taken 21 days to process.  He served honorably and would like to be honored for his service.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 was inducted into the Army on 28 October 1969.  He completed training and he was awarded military occupational specialty (MOS) 94A (Food Service Apprentice).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 41 (Awards and Decorations) he was awarded the:

* National Defense Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)
* Expert Marksmanship Qualification Badge with Grenade Bar

	b.  item 44 (Time Lost) five entries of lost time for being absent without leave (AWOL) and in confinement for a total of 134 days.

4.  The applicant was punished under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 7 October to 13 October 1970.

5.  The applicant was found guilty by a special court-martial on:

	a.  11 May 1971, for being AWOL from 22 March to 5 April 1971.

	b.  27 August 1971, for being AWOL from 16 June to 29 July 1971.

6.  On 15 October 1971, the applicant's commander recommended the applicant's separation under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for unfitness – frequent involvement in incidents of discreditable nature with civil or military authorities with an undesirable discharge.  The commander stated the discharge was recommended because the applicant had two special courts-martial and one punishment under the provisions of Article 15, UCMJ for AWOL.

7.  The applicant consulted with counsel and he waived consideration of his case by a board of officers, waived representation by counsel, and elected not to submit a statement in his own behalf.

8.  The brigade commander recommended approval of the discharge recommendation.

9.  On 29 October 1971, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-212, due to unfitness, with issuance of an Undesirable Discharge Certificate.


10.  Accordingly, the applicant was discharged on 5 November 1971.  He completed 1 year, 7 months, and 19 days of total active service with 134 days of time lost due to being AWOL and in confinement.

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

12.  Army Regulation 635-212 provided that an individual was subject to separation for unfitness when one or more of six conditions existed.  These included frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge under other than honorable conditions was normally considered appropriate.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted) 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 states 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 did not provide any evidence to support his contentions.  His two court-martial convictions and Article 15 punishment clearly show frequent incidents of a discreditable nature.

2.  The applicant’s 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 therefore were appropriate considering all of the facts of the case.

3.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge in this case.

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)                                         AR20100016226



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ABCMR Record of Proceedings (cont)                                         AR20120002788



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