IN THE CASE OF: 

		BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120009055 


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, an upgrade of his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states his absence without leave (AWOL) was due to transportation issues.

3.  The applicant 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.  The applicant's records show he enlisted in the Regular Army on 23 June 1967 and he held military occupational specialty 11D (Armor Reconnaissance Specialist).  On 11 December 1967, he was assigned to the 1st Squadron, 17th Cavalry Regiment, Fort Bragg, NC.

3.  On 11 December 1968, he was convicted by a special court-martial of one specification each of:

* being AWOL from 15 October to 13 November 1968 and from 23 to 26 November 1968
* disobeying a lawful order

4.  He was sentenced to 45 days of hard labor without confinement, a forfeiture of $45.00 per month for 3 months, and reduction to private/E-1.  The forfeiture of $45.00 per month for 3 months was suspended for 6 months, to be remitted unless vacated sooner. 

5.  On 11 April 1969, he was reported AWOL from his assigned unit and on 18 August 1969, he was returned to military control at Fort Sill, OK.

6.  On 12 September 1969, he was convicted by a special court-martial of one specification of being AWOL from 11 April to 18 August 1969.

7.  He was sentenced to confinement for 110 days, a forfeiture of $40.00 per month for 3 months, and reduction to private/E-1.  Only so much of sentence that provided for confinement for 3 months and a forfeiture of $40.00 per month for 3 months was approved.

8.  On 20 May 1970, he was convicted by a special court-martial of one specification of being AWOL from 29 December 1969 to 28 April 1970.

9.  He was sentenced to confinement for 6 months and a forfeiture of $100.00 per month for 6 months.  Only so much of sentence that provided for confinement for 4 months and a forfeiture of $65.00 per month for 4 months was approved.

10.  On 25 May 1970, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness based on his court-martial convictions and his 402 days of bad time due to AWOL and confinement.  


11.  On 26 May 1970, the applicant consulted with legal counsel who advised him of the basis for the contemplated separation action and of the procedures and rights available to him.  He acknowledged he understood that if he were issued an undesirable discharge under other than honorable conditions he could expect to encounter considerable prejudice in civilian life and he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He waived consideration of his case before a board of officers and elected not to submit a statement on his own behalf.

12.  On 27 May 1970, his immediate commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212, for unfitness with the issuance of an Undesirable Discharge Certificate.  The commander cited the applicant's three court-martial convictions, his 402 days of bad time due to AWOL and confinement, his dislike for the military, lack of self-motivation, and his negative attitude as the reasons for his recommendation.

13.  On 27 May 1970, his senior commander recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate.

14.  On 3 June 1970, the separation authority approved his separation action under the provisions of Army Regulation 635-212 for unfitness and directed the issuance of an Undesirable Discharge Certificate.

15.  On 4 June 1970, he was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation
635-212, with an under other that honorable characterization of service, and an Undesirable Discharge Certificate.  He completed 1 year, 11 months, and 3 days of net active service with 409 days of time lost due to AWOL and confinement.

16.  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.

17.  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, 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 or an established pattern of shirking.  This regulation prescribed that an individual discharged for unfitness would be furnished an undesirable discharge, except when an honorable or a general discharge was warranted by the particular circumstances.


18.  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.

19.  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.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the three court-martial convictions he received for being AWOL and disobeying a lawful order.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action 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 separation were therefore appropriate considering all the facts of the case.

3.  Based on his overall record, the applicant's service clearly did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to 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)                                         AR20120009055





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ABCMR Record of Proceedings (cont)                                         AR20120009055



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