DOCKET NUMBER:  AR20120004158 


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 an upgrade of his undesirable discharge to an honorable or a general discharge.

2.  He states:

* during his active duty service he was never in trouble
* he always performed his duties to the best of his abilities and in a timely manner
* he grew tired of the rigors of military life and went absent without leave (AWOL)
* he had no intentions of bringing dishonor to himself or the military
* at the time of his discharge he was young
* he has always strived to be a productive member of society and he has stayed out of legal trouble
* it has bothered him that he failed to serve his country honorably

3.  He provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* four character reference letters


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 born on 19 November 1951.  He enlisted in the Regular Army on 18 August 1970 at 18 years and 9 months of age.  He completed training and he was awarded military occupational specialty 91A (medical corpsman).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  Following initial entry training, the applicant was stationed in Korea for the duration of his period of service.

4.  The applicant's record shows that pursuant to his pleas, on 8 November 1971, he was tried and found guilty by a summary court-martial of:

	a.  having knowledge of a written lawful order, he failed to obey the same by leaving his military vehicle unattended;

	b.  neglect on 9 September 1971 by allowing a military utility vehicle of a value of about $3,196.00 to be stolen; and

	c.  wrongfully having in his possession 13 grams of marijuana on                     9 September 1971.

5.  His record also shows that pursuant to his pleas, on 25 February 1972 he was tried and found guilty by a special court-martial of:

	a.  being AWOL from 8 December 1971 to 28 December 1971 and from
30 December 1971 to 9 January 1972, and

	b.  breaking restriction on 30 December 1971.


6.  On 11 January 1972, the applicant's unit commander notified him that action was being initiated to separate him under the provisions of Army Regulation
635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness because of his unauthorized possession of marijuana.  The applicant was informed of the basis for the recommendation and he was advised of his right to present his case before a board of officers, to be represented by counsel, to submit written statements in his own behalf, or to waive these rights in writing.  The applicant acknowledged receipt of this notification on 12 January 1972.

7.  On 26 January 1972, having been advised by counsel on the basis of the contemplated action to separate him for unfitness, the applicant acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He indicated he further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and state laws, and that he could expect to encounter substantial prejudice in civilian life.  The applicant also elected to:

* waive consideration of his case by a board of officers
* waive personal appearance before a board of officers
* not to submit statements in his own behalf
* waive representation by civilian or military counsel

8.  On 3 February 1972, the applicant's unit commander recommended the applicant be required to appear before a board of officers convened under the provisions of Army Regulation 635-212 for the purpose of determining whether he should be discharged before his expiration of term of service.  The specific reason was his conviction for the unauthorized use of marijuana.  The commander summarized the applicant's disciplinary history and recommended he be provided an undesirable discharge.

9.  On 4 February 1972, the intermediate commander recommended the applicant be discharged by reason of unfitness.  Based on the applicant's waiver of consideration of his case by a board of officers during the notification process, the separation packet was forwarded to the separation authority.

10.  On 18 April 1972, the separation authority, a major general, approved the applicant's discharge under the provisions of Army Regulation 635-212 for unfitness and directed the applicant be furnished an Undesirable Discharge Certificate and reduced to the lowest enlisted grade.


11.  On 22 May 1972, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-212 with an undesirable discharge by reason of unfitness.  He completed 1 year, 5 months, and 13 days of total active service with 112 days of time lost due to being AWOL and in confinement.

12.  On 11 September 1973, the Army Discharge Review Board, after careful consideration of his military records and all other available evidence, determined he was properly discharge and denied his petition for an upgrade of his discharge.

13.  The character references he submitted noted he is friendly, honest, and giving.

14.  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 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy 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 contention that his discharge should be upgraded because he was never in trouble and he always performed his duties to the best of his abilities was carefully considered and determined to lack merit.

2.  His record reveals a disciplinary history that includes a conviction by two courts-martial for offenses including possession of marijuana, neglect of government property, failing to obey a written lawful order, and AWOL.

3.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  As such, the characterization of his service was properly determined to be undesirable.

5.  Records show the applicant was over 20 years of age at the time of his numerous acts of indiscipline and offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

6.  In view of the foregoing, there is no basis for granting the applicant's request for an honorable or a general 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)                                         AR20120004158



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ABCMR Record of Proceedings (cont)                                         AR20120004158



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