IN THE CASE OF:
BOARD DATE: 21 November 2013
DOCKET NUMBER: AR20130006332
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 a general discharge.
2. The applicant states that he was wrong for doing what he did and he is sorry. He was a stupid kid with a sick father. At least he did not go to Canada like others who received amnesty. He desires the Board to give him a break because he is a good man who liked the service.
3. The applicant provides no additional documents with 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. The applicant enlisted in the Regular Army on 22 December 1967 for a period of 3 years and training as a field artillery missile crewman. He was transferred to Fort Leonard Wood, Missouri to undergo basic training.
3. The applicant was arrested by civil authorities on 23 March 1968 and charged with 2nd degree burglary, which was amended to read malicious destruction of property. He was convicted and sentenced to serve 1 year in confinement. The court order sentence was stayed and the applicant was placed on probation for
2 years. The court relinquished his probation during the remainder of his military service and he was returned to military control on 21 June 1968.
4. On 8 August 1968, he was convicted by a special court-martial of being absent without leave (AWOL) from 30 March to 21 June 1968.
5. On 23 October 1968, nonjudicial punishment was imposed against him for being AWOL from 14 to 21 October 1968.
6. On 6 December 1968, he was convicted by a special court-martial at Fort Gordon, Georgia of being AWOL from 27 October to 14 November 1968.
7. On 18 December 1968, the applicants commander initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-212 for unfitness due to frequent involvement in incidents of a discreditable nature with civil and military authorities. He cited the applicants disciplinary record, attitude, and conduct as the basis for his recommendation. The applicant waived all of his rights and elected not to submit a statement in his own behalf.
8. The appropriate authority (a brigadier general) approved the recommendation for discharge on 30 December 1968 and directed that he be furnished an Undesirable Discharge Certificate.
9. Accordingly, on 8 January 1969, he was discharged under the provisions of Army Regulation 635-212 for unfitness based on frequent involvement in incidents of a discreditable nature with civil and military authorities, with an Undesirable Discharge Certificate. He had served 6 months and 19 days of active service and he had 182 days of lost time due to being AWOL and in confinement.
10. There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
11. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, that members who displayed an established pattern of shirking were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.
12. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights. Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.
2. The applicant's contentions have been considered. However, his repeated misconduct and his undistinguished record of service are not sufficiently mitigating to warrant an upgrade of his discharge. His service simply did not rise to the level of a general discharge.
3. Accordingly, there appears to be no basis to upgrade his 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.
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