IN THE CASE OF:	  

		BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120005587 


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 to honorable.  

2.  The applicant states, "The error was on my part.  I was young and foolish, but now I am a changed and mature man."  He relates to a Congressman that when he came home from Vietnam he did not want to stay in the Army.  He got into trouble.  When they offered him an undesirable discharge, he took it.  But, he wishes he had not done so.  He would like his status changed in case he needs medical help from the Department of Veterans Affairs (VA).  

3.  The applicant provides no documentation 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 26 September 1969.  Although he was absent without leave (AWOL) three times and was convicted by a special court-martial, he finally completed training as an airframe repairman. 

3.  He served in Vietnam from 6 June 1970 to 26 May 1971 with the 20th and the 605th Transportation Companies.

4.  He returned to the United States and failed to report for duty following post-deployment leave.  He was AWOL from 16 July through 4 August 1971.

5.  At a 26 August 1971 mental status evaluation the applicant exhibited  passive-aggressive behavior.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal, and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.  He had the capacity to participate in the discharge process and met retention standards.

6.  The applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations -Discharge - Unfitness and Unsuitability) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander stated the applicant's time lost and his other offenses met the criteria for unfitness.

7.  On 31 August 1971, after consulting with counsel and being advised of his recommended separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also declined to submit statements in his own behalf.

8.  The chain of command recommended an undesirable discharge, and the separation authority approved the recommendation and directed the issuance of an Undesirable Discharge Certificate.  

9.  On 21 September 1971, the applicant was discharged for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  He completed 1 years, 10 months, and 16 days of total active service.

10.  There is no evidence the applicant applied to the Army Discharge Review Board 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 separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities was subject to separation for unfitness.  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 takes responsibility for his actions but also states that he has matured.

2.  He did serve in Vietnam, but his misconduct started before he completed initial training and by his own admission upon return from Vietnam he essentially set about getting kicked out of the Army.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance for Army personnel.

3.  His 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 were therefore appropriate considering all the facts of the case.

4.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20120005587





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ABCMR Record of Proceedings (cont)                                         AR20120005587



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