IN THE CASE OF:	 

		BOARD DATE:	  8 January 2013

		DOCKET NUMBER:  AR20120011484 


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 reconsideration of an earlier request for an upgrade of his undesirable discharge.

2.  The applicant states the reason for his request is that shortly after his release from active duty, he had papers indicating he would receive his discharge through the mail but he never received it.  He contends that a newspaper article indicated that all veterans' discharges would be automatically upgraded to honorable due to the number of requests the ABCMR was receiving.  He further contends that based on the newspaper article, he did not feel it was necessary to request an upgrade of his discharge at the time.  He continues that based on the newspaper article, his discharge should have already been upgraded to honorable and he would like to ask the Board why his discharge has not been upgraded.  

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110011817, on 8 December 2011.

2.  The applicant's contention that his discharge would be automatically upgraded was not discussed in the previous Record of Proceedings.  Therefore, it is considered a new argument which warrants consideration by the Board.  

3.  In the previous Record of Proceedings it was noted:

	a.  He enlisted in the Regular Army on 7 November 1969 and he was awarded military occupational specialty 63H (Automotive Repairman) upon completion of initial entry training.  

	b.  He accepted nonjudicial punishment on three occasions for acts of misconduct that include failing to obey a lawful order from his class leader, failing to go at the time prescribed to his appointed place of duty, and for being absent without leave (AWOL) from 11 June to 30 September 1970 and from 6 October to 17 November 1970.

	c.  He was found guilty by a special court-martial on 9 April 1971 of being AWOL from 28 January to 6 March 1971 and by a second special court-martial on 21 June 1971 of willfully disobeying a lawful order from his superior noncommissioned officer.

	d.  His commander recommended his separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness.  The commander cited as the reasons for the propose separation the applicant's record of nonjudicial punishment and court-martial convictions.  Additionally, the applicant arrived at the Correctional Training Facility (CTF), Fort Riley, KS from the Fort Hood, TX stockade and he immediately began to display an extremely hostile and negative attitude.  He freely verbalized his dislike for the service and the CTF.  Numerous intensive counseling sessions were of little value and further rehabilitative efforts were considered unfeasible.

	e.  He was discharged on 21 July 1971 under the provisions of Army Regulation 635-212 with his service characterized as under other than honorable conditions.  He completed 8 months and 3 days of creditable active service and accrued 372 days of lost time.

	f.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

4.  The previous Record of Proceedings concluded that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights and that the type of discharge directed and the reasons therefore were appropriate.  Therefore, the Board voted to deny the applicant's requested relief.

5.  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 of the regulation 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.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

6.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  It provides in:

	a.  Paragraph 3-7a 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 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 contents that his undesirable discharge should be upgraded because a newspaper article indicated that all veterans' discharges would be automatically upgraded to honorable.

2.  Contrary to his contention, the Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge.  A discharge may be upgraded by the ADRB or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to his separation processing.  

3.  His record of indiscipline includes nonjudicial punishment on three occasions, two special court-martial convictions, and 372 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general or an honorable discharge.  

4.  Based on the foregoing, it is concluded that his discharge was proper and equitable and it accurately reflects his overall record of service.  As a result, there is an insufficient evidentiary basis to support granting the requested relief 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 to amend the decision of the ABCMR set forth in Docket Number AR20110011817, dated 8 December 2011.




      _______ _   __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)                                         AR20120011484



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ABCMR Record of Proceedings (cont)                                         AR20120011484



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