IN THE CASE OF:	  

		BOARD DATE:  26 September 2013

		DOCKET NUMBER:  AR20130003460 


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 to general, under honorable conditions.

2.  The applicant states he was discharged after completing the drug program.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 5 June 1970, the applicant was inducted into the Army of the United States.  He completed his initial training and was awarded military occupational specialty (MOS) 76A (Supply Clerk).
3.  The applicant's records show he accepted nonjudicial punishment (NJP) on:

	a.  21 December 1970, for missing bed check;

	b.  8 April 1971,  for disobeying a lawful order to get off a truck and pull gate guard duty;

	c.  12 May 1971, for being absent without leave (AWOL) for 2 days; and

	d.  12 August 1971, for three specifications of being AWOL.

4.  On 30 October 1971, the applicant's commander notified him that he had initiated elimination proceedings against him for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness or Unsuitability) due to unfitness.

5.  On 30 October 1971, the applicant's commander recommended him for separation due to unfitness under the provisions of Army Regulation 635-212.  The commander stated that the applicant had been unsatisfactory in his performance of duty.  He needed constant supervision.  He was a habitual heroin user and had been arrested several times for possession.  He had been AWOL on numerous occasions.  His military bearing was far below military standards.  He demonstrated a negative tendency toward all authority.  The commander requested a waiver of rehabilitation.

6.  The applicant consulted with counsel and waived consideration of his case by a board of officers; waived representation by counsel; and elected not to submit a statement in his own behalf.

7.  On 17 November 1971, the appropriate authority approved the recommendation for discharge and directed that he be discharged due to unfitness and issued DD Form 258A (Undesirable Discharge Certificate).  He further directed that the applicant's DD Form 214 was to be annotated in accordance with Army Regulation 635-212, paragraph 6a(1) and (4) with separation processing number (SPN) 286, for unfitness.

8.  On 3 December 1971, the applicant was discharged under conditions other than honorable.  He had completed 1 year, 5 months, and 5 days of creditable active duty service.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.
10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided that members were subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Personnel Separations-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 (emphasis added), 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 contends that his discharge should be upgraded because he was discharged after completing the drug program.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant has not provided convincing argument or sufficient documentary evidence showing that his discharge should be upgraded.

5.  In view of the above, the applicant’s request should be denied.






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)                                         AR20130003460





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ABCMR Record of Proceedings (cont)                                         AR20130003460



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