IN THE CASE OF:	  

		BOARD DATE:  29 November 2012

		DOCKET NUMBER:  AR20120009048 


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, in effect, that his discharge be upgraded. 

2.  The applicant states there was no error.

3.  The applicant provides two supporting letters.

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 30 October 1967.  Despite three starts, he never completed advanced individual training.

3.  On 29 November 1967, nonjudicial punishment was imposed against him under the provisions of Article 15, Uniform Code of Military Justice for willful disobedience.

4.  Special Court-Martial Order Number 1039, dated 12 September 1968, issued by Headquarters, Fort McPherson, GA, shows he was found guilty of two specifications of being absent without leave (AWOL):  18 to 20 June 1968 and 
21 June to 21 August 1968.

5.  Special Court-Martial Order Number 1371, dated 12 December 1968, issued by Headquarters, Special Troops, Fort Jackson, SC, shows he was found guilty of being AWOL from 13 September to 22 October 1968.

6.  The facts and circumstances pertaining to the applicant’s discharge proceedings under the provisions of Army Regulation 635-212 (Discharge – Unfitness and Unsuitability) were not contained in his military records.

7.  However, the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 28 January 1970 under other than honorable conditions with an undesirable discharge.  The reason and authority for discharge was listed as Army Regulation 635-212, Separation Program Number 28B (unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities).  He had 1 year, 2 months, and 16 days of creditable service and 346 days of lost time due to AWOL and confinement.

8.  On 16 November 1976, the Army Discharge Review Board denied the applicant's request to upgrade his discharge. 

9.  The applicant provides a letter from his minster who states the applicant is a changed man.  He thinks serious consideration for restoring any veteran benefits is warranted because the applicant deserves them and "we all make mistakes."  He also provides a letter from a lifelong friend who states that the applicant has always been loyal.`

10.  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 stated an individual was subject to separation for unfitness for one or more of six conditions, including frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.


11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  

12.  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.  

13.  Army Regulation 15-185 (ABCMR), the regulations governing the Board’s operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of facts and circumstances concerning the events that led to his discharge from the Army.  However, his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212, unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities.

2.  In the absence of evidence to the contrary, it is presumed his separation processing 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 reason for discharge were appropriate considering the available facts of the case.

3.  The letters of support are noted, but considering that the applicant never finished training he has provided insufficient evidence and argument to show that the discharge and its attendant loss of veteran benefits was or is unfair.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge in this case.





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)                                         AR20120009048





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ABCMR Record of Proceedings (cont)                                         AR20120009048



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