IN THE CASE OF:	  

		BOARD DATE:	    4 December 2012

		DOCKET NUMBER:  AR20120009570 


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 his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).  

2.  The applicant states there were 10 other people who participated in the incident and all were equally involved.  He states he was the only individual sent to the United States Disciplinary Barracks (USDB) for the incident and as a result he received a UD.  

3.  The applicant provides no documentary evidence.  

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 record shows he was inducted into the Army of the United States on 13 May 1968.  He was trained in and awarded military occupational specialty 94A (Food Service Apprentice).  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was advanced to the rank of private/E-2 on 13 September 1968, and this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private/E-1 for cause on 24 January 1969.  

4.  The applicant's disciplinary history includes two special court-martial (SPCM) convictions on 17 January 1969 and 18 February 1969, respectively; and acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions between 28 September and 9 October 1968.  As a result of his second SPCM conviction, he was confined for 312 days between 17 January and 24 November 1969.  

5.  On 10 November 1969, the commander of the USDB, Fort Leavenworth, Kansas, notified the applicant that action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness was being initiated.  

6.  On 14 November 1969, the applicant consulted with legal counsel and was advised of the basis for his contemplated separation and of his rights in connection with the action.  Subsequent to receiving legal counsel, the applicant completed an election of rights in which he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, representation by appointed counsel, and he elected not to submit statements in his own behalf.

7.  On 14 November 1969, the commander submitted a recommendation for the applicant's discharge for unfitness under the provisions of Army Regulation 635-212.  He cited the applicant's frequent incidents of a discreditable nature towards military authorities.  

8.  On 19 November 1969, the separation authority approved the applicant's discharge for unfitness and directed he receive a UD Certificate.  On 
25 November 1969, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant upon his discharge shows he completed 8 months and 4 days of creditable active service with 312 days of time lost due to confinement.

9.  On 17 March 1983, after carefully reviewing the applicant's entire record and the issues he presented, the Army Discharge Review Board determined the applicant's discharge was proper and equitable and denied the applicant's appeal for an upgrade of his discharge.

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 provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  The separation authority could authorize a general discharge under honorable conditions or an honorable discharge if warranted by the member's record of service.  However, when separation for unfitness was warranted, a UD was normally considered appropriate.

11.  Army Regulation 635-200 (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's request for an upgrade of his UD based on his discharge being unfair because it was not in line with everyone involved in an unidentified incident was considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history that includes two SPCM convictions, his acceptance of NJP on three separate occasions, and accrual of 312 days of time lost due to confinement.

4.  Given the applicant's undistinguished record of service and his extensive record of misconduct, the UD he received accurately reflects the overall quality of his service which did not support the issuance of an honorable discharge or a general discharge at the time of his discharge and does not support an upgrade now.

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)                                         AR20120009570



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ABCMR Record of Proceedings (cont)                                         AR20120009570



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