IN THE CASE OF:	  

		BOARD DATE:  25 OCTOBER 2012

		DOCKET NUMBER:  AR20120006498 


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:

	a.  other than receiving a few nonjudicial punishments (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) he did nothing to deserve this type of discharge; 

	b.  he was never court-martialed for any of the offenses he was accused of;

	c.  extenuating circumstances caused him to react inappropriately; and

	d.  he had a drug dependency problem and he has been clean since his discharge.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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.  His record shows he enlisted in the Regular Army on 24 June 1971.

3.  He received NJP under the provisions of Article 15, UCMJ on:

	a.  17 November 1971, for being absent without leave (AWOL) from 7 through 11 November 1971;

	b.  1 December 1971, for being AWOL from 26 through 30 November 1971;

	c.  16 December 1971, for failing to go to his appointed place of duty on 13 December 1971;

	d.  6 March 1972, for failing to go to his appointment place of duty on 
4 and 5 March 1972;

	e.  1 June 1972, for absenting himself from his place of duty on 22 May 1972; and

	f.  22 September 1972, for failing to go to his appointed place of duty on 15, 16, 17, and 22 September 1972.

4.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his record contains:

	a.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 25 September 1972, which shows he was being processed for administrative separation in accordance with Army Regulation 635-212 (Discharge-Unfitness and Unsuitability).

	b.  Special Orders Number 313, issued by Headquarters, U.S. Army Personnel Center, Fort Dix, NJ, on 8 November 1972, which show he was discharged under the provisions of Army Regulation 635-212 and issued an Undesirable Discharge Certificate.

	c.  A properly constituted DD Form 214 issued to the applicant at the time that confirms he was discharged accordingly on 8 November 1972.  He had completed a total of 1 year, 4 months, and 7 days of creditable active military service and he had 8 days of lost time due to being AWOL.  Item 13b shows he was issued a DD Form 258A (Undesirable Discharge Certificate).

5.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

6.  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.

7.  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 contends that his discharge should be upgraded.


2.  The applicant's record is void of the specific facts and circumstances that led to his discharge.  However, the evidence of record shows the applicant had six instances of NJP and 8 days of lost time due to being AWOL.  His record also contains a DD Form 214 that shows he was discharged on 8 November 1972 under the provisions of Army Regulation 635-212 by reason of unfitness with an undesirable discharge.

3.  Absent evidence to the contrary, it is presumed all requirements of law and regulation were met and his rights were presumably fully protected throughout the separation process.  It is also presumed his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  The characterization of service for this type of discharge was normally undesirable at the time the applicant was discharged.

4.  In view of the foregoing, there is no basis for upgrading the applicant's service to either general or honorable.

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)                                         AR20120006498



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ABCMR Record of Proceedings (cont)                                         AR20120006498



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