IN THE CASE OF: BOARD DATE: 4 January 2011 DOCKET NUMBER: AR20100016830 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 (UD) be upgraded to an honorable discharge. 2. The applicant states that after 39 years his discharge should be upgraded. 3. The applicant does not provide any additional documentation. 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’s military records show that he enlisted in the Regular Army on 4 January 1967, was awarded the military occupational specialty of clerk typist, immediately reenlisted on 8 December 1967, served in Vietnam from 6 June 1969 to 3 April 1970, and was promoted to pay grade E-5. 3. The applicant had accepted nonjudicial punishment (NJP) twice for failing to go at the time prescribed to his appointed place of duty on four occasions. 4. A Criminal Investigation Division (CID) investigation was conducted on an allegation that the applicant made homosexual advances on a male recruit while the applicant was performing duties as a billets clerk at an Armed Forces Entrance Examination Station (AFEES). 5. The applicant underwent a psychiatric evaluation and physical examination and was determined to be medically qualified for separation. 6. The applicant's commander notified him of his intent to recommend his discharge by reason of unfitness and of his rights in conjunction with that recommendation. The applicant waived his rights. 7. The applicant's commander forwarded a recommendation to discharge the applicant for unfitness under the provisions of Army Regulation 635-212. While the applicant's records do not contain the document approving his discharge, on 20 August 1971 the applicant was given a UD. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the Bronze Star Medal (BSM) with oak leaf cluster (two awards). 8. 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 6 of the regulation provided that an individual was subject to separation for unfitness due to homosexual acts during military service. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7a states 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. 10. Army Regulation 635-200, paragraph 3-7b, states 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 separation was processed in accordance with applicable regulations with no indication that his rights were violated. 2. Since the document approving the applicant's discharge is not contained in his records, a presumption of regularity must be applied, that what the Army did was correct. The burden to prove otherwise rests with the applicant. 3. While the applicant's service was exemplary in Vietnam (as evidenced by his two BSMs) and after he returned to the United States, he used his position and authority inappropriately when dealing with a recruit. Such behavior certainly warranted a UD even when his prior exemplary service is considered. 4. The Board does not upgrade a properly-issued discharge based solely on the passage of time. 5. In view of the foregoing, there is no basis for granting the applicant’s request. 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) AR20100016830 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100016830 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1