IN THE CASE OF:	  

		BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120005442 


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 (UD).  

2.  The applicant states he is requesting an upgrade of his discharge so he can get medical help.  He states he is homeless and due to his age he is unable to find work.  He claims he was young when he went into the military and he made bad choices which he regrets.  

3.  The applicant provides a self-authored letter and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his request.  

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 19 November 1969, and was trained in and awarded military occupational specialty (MOS) 94B (Cook).  

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows the applicant was advanced to private/E-2 on 19 March 1970, and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private/E-1 for cause on 8 February 1971.  

4.  The applicant's record documents no acts of valor or significant achievement.  His disciplinary history includes a summary court-martial (SCM) conviction on 
3 December 1970 and a special court-martial (SPCM) conviction on 
2 February 1971. 

5.  The disciplinary record also shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 13 May and 18 August 1970.  In addition, the applicant accrued
78 days of time lost due to five separate periods of being absent without leave (AWOL) between 6 May 1970 and 25 February 1971.  

6.  On 1 March 1971, the unit commander recommended the applicant be eliminated from military service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness based on frequent incidents of a discreditable nature.  

7.  On 5 March 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and the rights available to him.  Subsequent to receiving this legal counsel, the applicant completed an election of rights in which he waived his right to consideration of his case by and personal appearance before a board of officers; representation by counsel; and he elected not to submit statements in his own behalf.  

8.  The separation authority approved the applicant’s discharge for unfitness and directed he receive an Undesirable Discharge Certificate.  On 4 May 1971, the applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant upon discharge shows he completed 1 year, 2 months, and 28 days of creditable active service and he accrued 78 days of time lost due to being AWOL and in confinement.

10.  There is no indication the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15 year statute of limitations.
11.  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 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  The separation authority could authorize a general discharge under honorable conditions or an honorable discharge if warranted by the member's record of service.  However, when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 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 undesirable discharge should be upgraded so that he may receive medical help has been carefully considered.  Although the applicant’s current medical problems are unfortunate there are no regulatory or policy provisions that provides for upgrading a discharge for benefits.  

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history that includes SCM and SPCM convictions; his acceptance of NJP on two separate occasions; and his accrual of 78 days of time lost due to being AWOL. 

4.  Given the applicant’s undistinguished record of service and his extensive record of misconduct, the undesirable discharge he received accurately reflects the overall quality of his service which did not support the issuance of an honorable discharge or a general discharge at the time and it does not support an upgrade now.

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)                                         AR20120005442



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ABCMR Record of Proceedings (cont)                                         AR20120005442



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