IN THE CASE OF:	  

		BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120006090 


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 a fully honorable discharge.

2.  The applicant states that he would like to have his discharge upgraded to a fully honorable discharge after 43 years.

3.  The applicant provides three third-party character statements with his application.

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 18 May 1966 for a period of 3 years.  He was transferred to Fort Gordon, Georgia to undergo advanced individual training (AIT) as a radio repairman.

3.  On 25 October 1966, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 4 October to 23 October 1966.

4.  On 16 February 1967, NJP was imposed against him for being AWOL from 
16 December 1966 to 31 January 1967.

5.  On 20 February 1967, he was transferred to Fort Sam Houston, Texas to undergo AIT as a medical corpsman.  He completed that training and was transferred to Fort Rucker, Alabama on 5 May 1967. 

6.  On 26 May 1967, NJP was imposed against him for being AWOL from 22 May to 24 May 1967.

7.  On 5 December 1967, NJP was imposed against him for two specifications of failure to go to his place of duty.

8.  On 25 January 1968, the applicant was transferred to Vietnam for assignment to the 542d Medical Company for duty as a litter bearer.

9.  On 29 March 1968, he was convicted pursuant to his plea by a special court-martial of committing assault on another Soldier by shooting at him with an M-14 Rifle.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay for 6 months, and reduction to the pay grade of E-1.

10.  On 4 November 1968, he was convicted pursuant to his plea by a special court-martial of committing assault on another Soldier by shooting at him with an M-14 Rifle.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay for 6 months.

11.  The facts and circumstances surrounding his administrative discharge and his DD Form 214 (Report of Separation from Active Duty) are not present in the available records.  However, his records show that on 2 December 1968 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 based on his frequent involvement in incidents of a discreditable nature with civil and military authorities.


12.  After consulting with counsel the applicant waived all of his rights and declined to submit a statement in his own behalf. 

13.  On 23 January 1969, the appropriate authority approved the discharge recommendation and directed that he be furnished an Undesirable Discharge Certificate.

14.  Accordingly, on 29 January 1969, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.

15.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 23 July 1981 and requested a personal appearance before that board.  He was granted a personal appearance before the ADRB Traveling Panel in New York on 20 September 1982 and failed to appear before that board.  However, the ADRB considered his case based on the available evidence and found that his discharge was both proper and equitable and voted unanimously to deny his request on 18 October 1982.

16.  Army Regulation 635-212, in effect at the time, set forth the authority for the separation of enlisted personnel for unfitness and unsuitability.  It 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.

17.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

18.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative discharge under the provisions of Army Regulation 635-212 was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering all of the facts of the case.

3.  The applicant's contentions and supporting documents have been considered; however, they are not sufficiently mitigating when compared to his overall undistinguished record of service and repeated acts of misconduct.

4.  Accordingly, his service does not rise to the level of a general or an honorable discharge and there is no basis to grant his request.

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)                                         AR20120006090



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ABCMR Record of Proceedings (cont)                                         AR20120006090



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