IN THE CASE OF:	   

		BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120015971 


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 be upgraded.

2.  The applicant states he wasn't put out, he left on his own.

3.  The applicant provides no additional evidence in support of 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.  On 26 February 1969, he enlisted in the Regular Army.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 12 August 1969, he was assigned to the 1st Battalion (Airmobile), 502nd Infantry in the Republic of Vietnam.

4.  On 18 September 1969, he accepted nonjudicial punishment (NJP) for:

* being absent without leave (AWOL) from 18 - 23 August 1969
* being incapacitated for the proper performance of his duties on 23 August 1969 as a result of previous indulgence in intoxicating drugs

5.  On 15 November 1969, court-martial charges were preferred against the applicant for:

* failure to go at the time prescribed to his appointed place of duty
* disrespect toward a commissioned officer
* willfully disobeying a lawful order from a commissioned officer
* two specifications of willfully disobeying a lawful order from a noncommissioned officer
* being incapacitated for the proper performance of his duties on 2 October 1969 as a result of previous indulgence in intoxicating drugs

6.  The final disposition of the court-martial charges is not shown in the applicant's Military Personnel Records Jacket (MPRJ).

7.  On 11 November 1969, he received a mental evaluation by the Division psychiatrist.  The examiner stated:

* the applicant was referred because of his continual intoxication
* a mental status examination revealed an intoxicated individual with normal motor behavior
* he diagnosed the applicant with an antisocial personality, chronic, severe, manifested by drug and alcohol abuse, criminal acts
* the applicant appeared intoxicated at the interview
* he suspected the applicant will always pose a threat to society
* the applicant met the retention standards prescribed in chapter 3, Army Regulation 40-501
* there is no psychiatric disease or defect which warrants disposition through medical channels
* the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in board proceedings


8.  On 20 November 1969, the applicant was assigned, in a patient status, to the 106th General Hospital in Japan.  On 24 November 1969, he was assigned, in a patient status, to the Medical Holding Detachment, Medical Detachment, Naval Hospital, Great Lakes, IL.  

9.  While assigned to the 1st Replacement Detachment at Fort Riley, KS, he accepted NJP on:

* 5 May 1970 for being AWOL from 10 April to 4 May 1970
* 16 June 1970 for being AWOL form 9 May to 7 June 1970

10.  On 19 June 1970, he was assigned to the 1st Supply and Transportation Battalion, Fort Riley, KS.

11.  On 30 July 1970, he was tried before a summary court-martial.  He pled guilty and was found guilty of:

* two specifications of failure to go at the time prescribed to his appointed place of duty
* being AWOL from 1 - 2 July 1970
* being AWOL from 3 - 19 July 1970

12.  On 26 January 1971, he was tried before a special court-martial.  He pled guilty and was found guilty of being AWOL during the following periods:
 
* 22 September to 6 October 1970
* 12 October to 6 November 1970
* 9 November to 27 November 1970

13.  His separation processing package was not available for review.

14.  On 24 March 1971, he was discharged under the provisions of Army Regulation 635-212 by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities with the issuance of an undesirable discharge.  He completed 1 year, 4 months, and 29 days of active service that was characterized as under conditions other than honorable.  He had 240 days of time lost.

15.  Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  This regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

16.  Army Regulation 635-200 (Personnel Separations) currently 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.  

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  His separation processing package was not available for review.

2.  He accepted NJP on three occasions.  He has convictions by a summary and a special court-martial and he had 240 days time lost.  This clearly shows his record of service to be unsatisfactory.  

3.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  Therefore, the type of discharge and the reason for separation are appropriate considering the available facts of the case.

4.  Therefore, in view of the above there is an insufficient basis to upgrade his undesirable discharge to either a general discharge or an honorable discharge.


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)                                         AR20120015971



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ABCMR Record of Proceedings (cont)                                         AR20120015971



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