IN THE CASE OF:
BOARD DATE: 10 January 2013
DOCKET NUMBER: AR20120011740
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 correction of his discharge under other than honorable conditions for unfitness to a hardship discharge.
2. The applicant states his dad wrote to the 5th Army Headquarters and told a lot of lies about him.
3. The applicant provides his DD Form 214 (Report of Separation from Active Duty).
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 for 3 years on 24 June 1971. He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).
3. He was awarded or authorized the National Defense Service Medal. The highest rank/grade he attained was private first class/E-3. He was assigned to the 1st Battalion, 10th Infantry, Fort Carson, CO.
4. On 27 November 1972, he departed his unit in an absent without leave (AWOL) status, but he returned on 3 December 1972.
5. On 7 December 1972, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for being AWOL from 27 November to 3 December 1972.
6. On 29 September 1973, he again departed his unit in an AWOL status and he was dropped from the rolls as a deserter on or about 11 November 1973. He was apprehended by military authorities and returned to military control on 14 January 1974.
7. On 11 February 1974, he was convicted by a special court-martial of one specification of being AWOL from 29 September 1973 to 14 January 1974. The court sentenced him to confinement at hard labor for 4 months, forfeiture of $150.00 pay per month for 4 months, and reduction to the lowest enlisted grade. The convening authority approved his sentence on 6 March 1974.
8. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his records contain a duly-constituted DD Form 214 that shows he was discharged under other than honorable conditions on 12 April 1974 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unfitness (separation program designator code 28B). He was issued an Undesirable Discharge Certificate. He completed 2 years, 3 months, and 27 days of creditable active military service and he had 172 days of lost time.
9. On 4 March 1982, the Army Discharge Review Board determined he was properly and equitably discharged. Accordingly, it denied his petition for an upgrade of his discharge.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.
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 record is void of the facts and circumstances that led to his discharge. However, his record contains a DD Form 214 that shows he was discharged on 12 April 1974 under the provisions of Army Regulation 635-212 by reason of unfitness.
2. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He provided no information that would indicate the contrary.
3. It appears his discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. This is evidenced by his NJP, extended AWOL, and confinement.
4. Based on his record of indiscipline, his service does not merit an upgrade of his discharge. In view of the foregoing, there is no basis for granting the applicant's requested relief.
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 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) AR20120011740
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ABCMR Record of Proceedings (cont) AR20120011740
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