IN THE CASE OF:	

		BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120007655 


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 a general discharge.

2.  The applicant states he was young and hot-headed during his military service. He has now reached an age and level of maturity to deserve upgrade of his discharge.  He adds an upgrade of his discharge would open up avenues of increased income.

3.  The applicant provides no additional documentary evidence in support of 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 14 June 1966 at the age of
18 years, 11 months, and 2 days for a period of 3 years.  Upon completion of training he was awarded military occupational specialty (MOS) 76A (Supply Specialist).

3.  He was reassigned to Korea on 17 November 1966.

4.  Special Court-Martial Order Number 5, issued by Headquarters, 23rd Direct Support Group, U.S. Army Humphreys District, dated 28 February 1967, shows the applicant was tried at a special court-martial on 17 February 1967.

	a.  He pled guilty to and was found guilty of:

* being absent with leave (AWOL) from 21 to 23 January 1967
* wrongfully appropriating a U.S. Government vehicle on 21 January 1967

	b.  His sentence was adjudged on 17 February 1967.  It provided for the forfeiture of $64.00 per month for 3 months, reduction to the rank/grade of private (PV1)/E-1, and confinement at hard labor for 3 months.

5.  On 19 June 1967, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for leaving his post without proper authority.

6.  A "Second Corrected Copy" of Special Court-Martial Order Number 18, issued by Headquarters, 23rd Direct Support Group, U.S. Army Humphreys District, dated 23 September 1967, shows the applicant was tried at a special court-martial on 3 August 1967.

	a.  He pled guilty to and was found guilty of:

* wrongfully and unlawfully impersonating a noncommissioned officer (NCO) of the US. Army on 2 July 1967
* being AWOL from 29 June to 3 July 1967
* failing to obey a lawful order on 1 July 1967

	b.  His sentence was adjudged on 3 August 1967.  It provided for confinement at hard labor for 5 months.


7.  Special Court-Martial Order Number 13, issued by Headquarters, 23rd Direct Support Group, U.S. Army Humphreys District, dated 19 August 1968, shows the applicant was tried at a special court-martial on 22 July 1968.

	a.  He pled guilty to the charge of being AWOL from 31 May to 7 June 1968.

	b.  However, he was found guilty of:

* being AWOL from 31 May to 7 June 1968
* misappropriating one .45 caliber automatic pistol, the property of the U.S. Government, on 26 May 1968
* wrongfully appropriating a U.S. Government vehicle on 31 May 1968

	c.  He was sentenced to forfeiture of $68.00 per months for 6 months and confinement at hard labor for 6 months.

	d.  On 13 November 1968, the unexecuted portion of the sentence was suspended for a period of 4 months, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence would be remitted without further action.

8.  His record contains a Certificate, dated 17 June 1968, that shows he was evaluated by a psychiatrist at the Neuropyschiatric Service, 121st Evacuation Hospital, Korea, on 14 June 1968.

	a.  The psychiatrist determined the applicant was mentally able to distinguish right from wrong and to adhere to the right; he was mentally able to understand the nature of board proceedings and to testify in his own behalf; and that there was no physical or mental disease or defect warranting separation under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	b.  He provided comments and recommendations as follows:  "[the applicant] was previously seen in this clinic because of his behavior.  At that time it was suggested that he be separated from the Army as it was expected that this individual would continue to be a disciplinary problem.  He seems to be an impulse-ridden person who disregards regulations for his own profit.  His motivation to change has been proven to be null.  I don't think that disciplinary measures will make him a better Soldier."


	c.  The psychiatrist recommended the applicant be administratively separated from military service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).

9.  A copy of the commander's notification to the applicant of his intent to recommend his separation from the U.S. Army under the provisions of Army Regulation 635-212 is not available for review.

10.  On 27 August 1968, the applicant consulted with legal counsel and acknowledged he was advised of the basis for the contemplated separation action under the provisions of Army Regulation 635-212 for unfitness.

	a.  He was advised that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him.

	b.  He was also advised that as a result of issuance of an undesirable discharge under conditions other than honorable, he may be deprived of many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under conditions other than honorable.

	c.  The applicant waived consideration of his case by a board of officers; waived personal appearance before a board of officers; waived representation by counsel; and elected not to submit statements in his own behalf.

11.  On 1 October 1968, the applicant's commander recommended the applicant be separated from the service for unfitness because of habits and traits of character manifested by his absence without leave and frequent incidents of a discreditable nature with military authorities that repeatedly rendered him subject to punitive action.

12.  On 8 October 1968, the applicant's intermediate commander recommended approval of the proposed separation action with the issuance of an Undesirable Discharge Certificate.

13.  The separation authority, a brigadier general, subsequently approved the applicant's discharge for unfitness under the provisions of Army Regulation
635-212.  He directed the applicant be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.

14.  On 19 November 1968, the applicant was discharged accordingly.  He completed 1 year, 8 moths, and 6 days of total active service with 269 days time lost under due to AWOL and confinement.

15.  On 24 November 1976, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge to a general discharge for the purpose of attending school.

16.  On 28 April 1977, the Commander, Reserve Component Personnel and Administration Center, St. Louis, MO, informed the applicant that his records indicate he qualified for consideration for upgrading his discharge under the provisions of the Department of Defense (DOD) Discharge Review Program (Special) that was announced on 5 April 1977.  He was provided information on the qualifying criteria and given 30 days to submit any information he could obtain in support of the qualifying criteria.

17.  On 31 August 1977, the applicant was notified that the ADRB determined he was properly discharged.  Accordingly, his request for a change in the type and nature of his discharge under the DOD Discharge Review Program (Special), was denied.

18.  Army Regulation 635-212, in effect at the time, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation provides that when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

19.  Army Regulation 635-200 (Personnel Separations - 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 contends his discharge should be upgraded to a general discharge because, at the time, he was immature and hot-headed.

	a.  The applicant satisfactorily completed training and he was awarded MOS 76A.

	b.  He was 19 years, 6 months, and 9 days of age when he committed his first misconduct offense.

	c.  A psychiatrist determined he was mentally able to distinguish right from wrong and to adhere to the right.  He also noted that the applicant was impulse-ridden, which contributed to his disciplinary problems.  However, the psychiatrist made no mention that the applicant had an anger-management problem.

2.  The evidence of record shows the applicant's separation under the provisions of Army Regulation 635-212 for unfitness was proper and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  In addition, the characterization of service directed was appropriate and equitable.

3.  The evidence of record shows the applicant:

* received NJP on at least one occasion
* was convicted at three special courts-martial
* had a total of 269 days of time lost
* completed only 20 months of his 3-year enlistment commitment

4.  The applicant has not provided any evidence sufficient to support upgrading his discharge.

5.  Records show that the applicant was over 19 years of age at the time of his numerous acts of indiscipline and offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans benefits or increased employment opportunities.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.


7.  In view of all of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120007655



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ABCMR Record of Proceedings (cont)                                         AR20120007655



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