IN THE CASE OF: BOARD DATE: 22 March 2011 DOCKET NUMBER: AR20100020815 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 to an honorable discharge. 2. He states, in effect, he believes his record is in error and unjust because the people involved in his discharge process lied and it was wrong. 3. He 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. His record shows he enlisted in the Regular Army for a period of 3 years on 19 September 1967. He did not successfully complete initial entry training; therefore, he was not awarded a military occupational specialty. The highest rank/grade he attained while serving on active duty was private/E-1. 3. His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 5 June 1968 while attending Advanced Individual Training (AIT) for being absent without leave (AWOL) from his unit from 15 January to 8 February 1968. 4. His record also shows he was arraigned and tried by a summary court-martial on 19 July 1968 which found him guilty of being AWOL from 1 to 4 July 1968. 5. His record shows he was arraigned and tried by a special court-martial on 15 October 1968 which found him guilty of being AWOL from 14 August to 1 October 1968. 6. His record contains a form letter, dated 9 December 1968, which shows he was arrested by civil authorities and as a result a Federal Bureau of Investigation report was provided to his chain of command. This report shows his charges included: * Auto theft * AWOL offense * Carry a concealed weapon (Firearm) without a license * Violation of the Dyer Act [knowingly transporting a stolen vehicle across state or international borders] 7. The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case. Special Orders Number 11 rendered by the U.S. Army Correctional Training Facility, Fort Riley, KS, dated 16 January 1969, shows the applicant was discharged under the provisions of Army Regulation 635-212, on 20 January 1969, due to unfitness with a DD Form 258A (Undesirable Discharge Certificate). 8. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to him at the time shows he was discharged under the provisions of Army Regulation 635-212 due to [frequent incidents of a discreditable nature with civil or military authorities], with a character of service of under other than honorable conditions and he was issued a DD Form 258A. He was assigned a Separation Program Number of 28B. He had completed 10 months and 14 days of creditable active service with 168 days of time lost. 9. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 10. His record is void of any evidence and he has not provided evidence to support his contention that he was lied to or that he was wrongfully discharged. 11. 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, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 12. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel. 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. 13. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his undesirable discharge should be upgraded to an honorable discharge was carefully considered and determined to lack merit. 2. His record is void of any evidence and he has not provided evidence to support his contention that he was lied to or that he was wrongfully discharged. Therefore, his contention is unfounded. 3. His record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ, conviction by summary court-martial, conviction by special court-martial, and being arrested for numerous serious criminal charges. 4. The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature. His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or it was unlikely he would become a produce Soldier. 5. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. As such, government regularity insofar as the discharge process must be presumed. It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, it appears the applicant's discharge reflects his overall record of military service. 6. In view of the foregoing, there is no basis for upgrading the applicant's undesirable discharge to either a general 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) AR20100020815 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100020815 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1