BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120012151 


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 an upgrade of his undesirable discharge (UD) to general under honorable conditions.

2.  The applicant states, in effect, his discharge was too harsh.  He was offered a general discharge (GD) under honorable conditions by his battalion commander; however, he received a UD.

3.  The applicant provides no additional 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 enlisted in the Regular Army on 24 March 1971.  He was trained in and awarded military occupational specialty 94B (Cook).  His DA Form 20 (Enlisted Qualification Record) shows he was advanced to the rank of private first class/E-3 on 2 January 1972 and this is the highest rank he attained and held while serving on active duty.  It also shows he was reduced to private/E-2 for cause on 25 January 1972 and to private/E-1 on 21 March 1972.

3.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 25 January 1971 for destroying government property and disorderly conduct.  It also includes a summary court-martial conviction for being absent without leave (AWOL) from 8 February to 8 March 1972.

4.  On 4 April 1972, the unit commander notified the applicant of his intent to recommend his discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness.

5.  On 5 April 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action.  He waived the rights available to him and elected not to submit statements in his own behalf.  The legal counsel document indicates the applicant was counseled regarding the effects of a GD; however, it also shows he was informed he could receive a UD and he was also advised of the effects of this type of discharge.

6.  On 5 April 1972, the unit commander submitted a recommendation to eliminate the applicant for unfitness and recommended he receive a UD.  The unit commander cited the applicant's disciplinary history since joining the unit, his demonstrated lack of motivation, his generally poor attitude, and his record of AWOL as the basis for the action.

7.  On 11 May 1972, the separation authority approved the applicant's discharge for unfitness and directed issuance of a UD.  On 22 May 1972, the applicant was discharged accordingly.

8.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 9 months and 23 days of creditable active service with 96 days of lost time due to AWOL and confinement.

9.  On 7 November 1979 after careful consideration of the military record and all other available evidence, the Army Discharge Review Board determined the applicant's discharge was proper and equitable and voted to deny the applicant's request to upgrade 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) 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 GD 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), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provides that a GD 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 to a GD has been carefully considered.  However, there is insufficient evidence to support this request.

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

3.  Although the applicant's legal counsel advised him of the effects of a GD, he also advised him that he could receive a UD and counseled him on the effects of a UD.  Further, the applicant's unit commander and intermediate commanders all recommended the applicant receive an UD which was the discharge ultimately directed by the separation authority.

4.  The UD issued to the applicant accurately reflects his overall record of undistinguished service and was appropriate given his extensive disciplinary history.  Absent any evidence of error or injustice in his discharge processing, there is an insufficient evidentiary basis to support 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)                                         AR20120012151



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ABCMR Record of Proceedings (cont)                                         AR20120012151



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