IN THE CASE OF:	  

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120010038 


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 that his undesirable discharge be upgraded.

2.  The applicant states that he was attending a company picnic at Fort Carson, Colorado and he and several other Soldiers were approached by a man in civilian clothes and berated for their vulgar language which he said offended him and his family.  He goes on to state that he did not know he was a captain until after he was arrested and charged.  He also states that at his Article 15 hearing his counsel proved his innocence and he was then told that he would be discharged under honorable conditions; however, he just discovered that he received a dishonorable discharge when he applied for benefits.

3.  The applicant provides no additional documents with 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 22 December 1970 for a period of 3 years and training as a stock control and accounting specialist.  He completed his basic training at Fort Ord, California and his advanced individual training at Fort Lee, Virginia and was transferred to Fort Carson, Colorado for his first and only duty assignment.

3.  On 8 December 1971, he was convicted by a special court-martial of disobeying a lawful command, threatening a superior commissioned officer, and being absent without leave (AWOL) from 20 September to 24 September 1971.  He was sentenced to confinement at hard labor for 75 days and a forfeiture of pay. 

4.  The complete facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records as they were provided to the Veterans Administration in Albuquerque, New Mexico on           20 November 1975.  However, his records show that his commander recommended that he be discharged under the provisions of Army Regulation 635-212 (Discharge – Unfitness and Unsuitability) for unfitness due to his frequent involvement in incidents of a discreditable nature with military authorities.  He cited as the basis for his recommendation the applicant’s court-martial conviction, three periods of being AWOL, and that nonjudicial punishment had been imposed against him on nine separate occasions from 20 July to          22 November 1971 for offenses of failure to go to his place of duty, failure to obey a lawful command, and AWOL.  The appropriate authority approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

5.  On 15 May 1972, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-212 for unfitness due to frequent involvement in incidents of a discreditable nature with military authorities.  He had served 1 year, 1 month, and 28 days of active service and had 90 days of lost time due to AWOL and confinement.

6.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

7.  Army Regulation 635-212, in effect at the time, set forth the authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

8.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

9.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative discharge under the provisions of Army Regulation 635-212 was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering all of the facts of the case.

3.  The applicant's contentions have been considered; however, they are not sufficiently mitigating when compared to his overall undistinguished record of service and repeated acts of misconduct.

4.  Accordingly, his service does not rise to the level of a general or an honorable discharge and there is no basis to grant his request.

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)                                         AR20120010038





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ABCMR Record of Proceedings (cont)                                         AR20120010038



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