IN THE CASE OF:	  

		BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120004105 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his third-party statements explain his request. 

3.  The applicant provides 19 third-party letters of support, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of his marriage license and his spouse’s Social Security Card, a copy of his son’s  passing of the test for acceptance into the United States Secret Service, his block captain’s card, two certificates of appreciation for volunteering in the prison system, and a Christmas card from the First Family.

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 29 July 1964 for a period of 3 years and assignment to Europe.  He completed his training at Fort Gordon, Georgia and was transferred to Munich, Germany on 26 January 1965 for assignment to an armor company.

3.  During the period 11 January 1965 to 15 November 1966, nonjudicial punishment was imposed against him on at least nine different occasions for failure to go to his appointed place of duty, illegal possession of a switchblade knife, being drunk and disorderly, and disobeying a lawful order from a superior noncommissioned officer.

4.  On 2 May 1966, he was convicted by a special court-martial of disobeying a lawful order from a superior commissioned officer and disobeying a lawful order from a superior noncommissioned officer.

5.  On 11 October 1966, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-212 for unfitness due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He cited as the basis for his recommendation the applicant’s failure to respond to counseling and rehabilitative efforts, failure to demonstrate the aptitude and interest necessary to become an effective Soldier, and his lack of self-discipline, sense of responsibility and any sort of self-improvement.

6.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

7.  The appropriate authority (a major general) approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

8.  Accordingly, he was discharged under other than honorable conditions on 29 December 1966 under the provisions of Army Regulation 635-212 for unfitness due to his frequent involvement in incidents of a discreditable nature.  He had served 2 years, 5 months, and 1 day of active service. 

9.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge under the Department of Defense (DoD) Special Discharge Review Program (SDRP) and on 30 June 1977, the ADRB determined that his discharge was both proper and equitable and given his numerous acts of indiscipline, the ADRB voted unanimously to deny his request.

10.  The Department of Defense SDRP provided for the review of Vietnam era less-than-honorable discharges in the spirit of compassion.  Compelling reasons for upgrade under the primary criteria were the award of a decoration or service medal, wounded in action, satisfactory completion of a tour of duty in Southeast Asia, receipt of a prior honorable discharge, or completion of satisfactory service of 24 months prior to discharge.  Reasons for granting an upgrade under secondary criteria included age, aptitude, education level, alcohol/drug problem, record of good citizenship, etc.

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, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were 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 states 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, 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’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

2.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the facts of the case.

3.  The applicant's post-service record and supporting documents have been considered; however, given his undistinguished record of service and the repeated nature of his misconduct, they are not sufficiently mitigating to warrant an upgrade of his discharge, especially given the absence of mitigating circumstances at the time.
 
4.  Accordingly, there appears to be no basis to warrant an upgrade of his 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)                                         AR20120004105





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ABCMR Record of Proceedings (cont)                                         AR20120004105



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