IN THE CASE OF:	  

		BOARD DATE:  18 September 2012

		DOCKET NUMBER:  AR20120004646 


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) be upgraded to an honorable discharge (HD).

2.  The applicant states:

   a.  he was under duress when he departed absent without leave (AWOL); and
   
   b.  personal stress led to his acceptance of a UD with less than 90 days remaining service.
   
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 record shows he enlisted in Regular Army on 12 April 1965.  He served in military occupational specialty (MOS) 55A (Ammunition Apprentice).

3.  His DA Form 20 (Enlisted Qualification Record) shows he was twice promoted to private first class (PFC/E-3), on 27 January 1966 and 14 April 1967, and this was the highest rank he attained while serving on active duty.  It also shows he was thrice reduced and his last reduction was to private (PVT)/E-1 on 8 July 1968.

4.  Item 44 (Time Lost Under Section 972, Title 10, USC) of the applicant's 
DA Form 20 shows he accrued 711 days of lost time due to twenty-two separate occasions of AWOL or confinement between 2 July 1965 and 4 January 1970.

5.  The applicant’s record shows his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two occasions for the offenses indicated:

* 23 June 1967, for being AWOL from 3 - 4 June 1967
* 28 December 1968, for being absent from formation on 26 December 1968

6.  Pursuant to his pleas, the applicant was convicted by court-martial on the following dates as indicated:

* 12 October 1965 - special court-martial (SPCM), for being AWOL
* 4 January 1967 - summary court-martial (SCM), for being AWOL
* 8 July 1968 - SPCM, for theft of private property, 4 specifications of AWOL, and failing to obey a lawful order
* 2 December 1969 - SPCM, for being AWOL

7.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, there is a DD Form 214 on file that shows he received a UD on 27 January 1970.  This document also shows he completed a total of 2 years, 10 months, and 5 days of creditable active military service and accrued 711 days of time lost.

8.  The applicant's DD Form 214 also shows he was separated under the provisions of Army Regulation 635-212 and assigned a separation program number (SPN) of 28B, which shows he was separated for unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).

9.  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.

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an honorable discharge (HD) or general discharge (GD) under honorable conditions if warranted by the member's overall record of service; however, a UD was normally considered appropriate for members separating under these provisions.

11.  Army Regulation 635-5-1 (Separation Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  The regulation in effect at the time of the applicant’s discharge stipulated that SPN 28B was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-212, by reason of unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).

12.  Army Regulation 635-200 (Personnel Separations) currently provides the Army's enlisted administrative separation policy:

   a.  Army Regulation 635-200, 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.  Army Regulation 635-200, 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 contends his UD should be upgraded because he was under duress.  While there is no evidence of record to support this claim, his record does show he twice accepted NJP, was convicted by court martial four times, and accrued a total 711 days time lost as a result of twenty-two separate occasions of AWOL or confinement, warranting the UD he received.

2.  His record is void of a separation packet that contains the specific facts and circumstances surrounding his separation processing for his final period of active duty service.  However, the record contains a properly-constituted DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-212 and that he was assigned a SPN of 28B, which shows he was separated for unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).  This document carries with it a presumption of government regularity in the discharge process.  In the absence of evidence to the contrary it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record of misconduct clearly diminished the overall quality of his service below that meriting the issuance of an HD or GD by the separation authority at the time of discharge, or an upgrade of his discharge at this late date. Accordingly, there is no basis upon which to grant the requested relief.

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)                                         AR20120004646





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ABCMR Record of Proceedings (cont)                                         AR20120004646



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