RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070010519 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Scott W. Faught

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).



THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his general discharge be upgraded to an honorable discharge.

2.  The applicant states that he has been in good standing within his community.

3.  The applicant did not provide any documentation in support of his request.

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 record show that he enlisted in the Regular Army on 19 May 1969 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76Y (Armorer and Unit Supply Specialist).  The highest rank he attained during his military service was specialist four/pay grade E-4. 

3.  The applicant’s records show that he served in Germany during the period 22 October 1969 through 30 October 1969 and in the Republic of Vietnam during the period 29 December 1970 through 9 December 1971.

4. The applicant’s records further show that he was awarded the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal, the Army Commendation Medal, the National Defense Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14 and M-16). 



5.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 31 October 1971 for disobeying a lawful order to pull guard duty on 28 October 1971.  His punishment consisted of reduction to the grade of private first class/pay grade E-3, forfeiture of $40, and 7 days of extra duty.

6.  On 23 June 1972, the applicant was notified of his pending separation from the service under the provisions of Army Regulation 635-212 (Personnel Separations) for unsuitability.  He cited the applicant’s habits and traits of character manifested by repeated commission of offenses and that the applicant would not respond to corrective action.  Specific allegations which were the basis for the proposed action included frequent incidents of discreditable nature; frequent letters of indebtedness and writing checks with insufficient funds; and lack of potential for rehabilitation.

7.  After consulting with counsel, the applicant waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He elected not to submit a statement in his own behalf and acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  

8.  On 23 June 1972, the applicant’s immediate commander recommended the applicant be discharged from military service under the provisions of Army Regulation 635-212 for unsuitability and be furnished a General Discharge.  The immediate commander stated that the applicant performed unsatisfactorily in every position he was assigned to, including assignments as battalion supply room specialist; assistant armorer and company commander’s driver; motor pool prescribed load list (PLL) clerk; and battalion commander’s driver.  The immediate commander further requested a waiver of the rehabilitative transfer requirements and concluded that a discharge was recommended due to the applicant’s performance that was characterized by behavior rendering him repeatedly subject to punitive action and that he was reprimanded on many occasions.

9.  In a certificate, dated 22 June 1972, the acting battalion commander during the period 27 May 1972 to 13 June 1972 stated that the applicant was undergoing financial difficulties and owed money to the servicing finance office, the American Red Cross, and the Army Emergency Relief.  He further owed two months house rent to his landlord and owed money to a local grocery store and other business establishments.  The acting battalion commander added that the 
applicant had an allotment to his spouse in Maryland but was supporting and living with another woman, also married, in Texas.  The acting battalion commander concluded that he (the commander) was shown warrants for the applicant’s arrest for non-payment of bills. 

10.  In an undated certificate, the immediate commander stated that the applicant continuously displayed a low standard of performance.  He further added that the applicant appeared in a Texas court for writing bad checks; had unpaid balances to local businesses; issued non-sufficient funds checks to local businesses; borrowed a loan from the Army Emergency Relief Fund under fraudulent conditions; borrowed money from the Red Cross with no attempt to repay; continued to receive E-4 pay for approximately five months despite being reduced to E-3; and that several merchants had called the unit reporting debts and bad checks by the applicant.  The immediate commander further stated that he counseled the applicant but the applicant repeatedly failed to adhere to the standards and that he was living with a married person who was receiving illegal post privileges.  The commander concluded that professional guidance and chaplain’s efforts failed to rehabilitate the applicant and that separation from military service was best.  

11.  On 26 June 1972, the separation authority approved the request to discharge the applicant in accordance with paragraph 15d of Army Regulation 635-212.  He further directed that the applicant be furnished a General Discharge Certificate.

12.  The applicant was discharged on 11 July 1972 with a General Discharge.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows that he was discharged under the provisions of Army Regulation 635-212.  This form further shows the applicant's character of service as under honorable conditions and that he completed 3 years, 1 month, and 22 days of creditable active service.

13.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

14.  The applicant has provided no record or indication to support his contention that he has been in good standing within his community since his discharge from the Army.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, for the separation of individuals determined to be unfit for further 
service by reason of frequent incidents of a discreditable nature with civil or military authorities.  Under this regulation and paragraph the appropriate authority could approve an honorable, a general discharge, or an undesirable discharge.

16.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge.

2.  The applicant’s entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  There is no evidence and the applicant has not provided any evidence of his post-service conduct and accomplishments, or his standing in the community.

3.  Evidence of record shows the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.

4.  The reason for discharge and the characterization of service were both proper and equitable.  Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his general discharge to fully honorable.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __jrm___  __swf___  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.



							John T. Meixell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070010519
SUFFIX

RECON

DATE BOARDED
20071129
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19720711
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.