IN THE CASE OF:	 

	BOARD DATE:	18 September 2008  

	DOCKET NUMBER:  AR20080009833 


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 under honorable conditions. 

2.  The applicant states, in effect, that he was having problems with drugs and alcohol while in the service.  He was also having problems with the leadership in his unit.  He has been through an anger management course to help control his temper and he has taken alcohol treatment classes to help control his drinking problem.  He wants a better education and he needs help to reestablish his goals and dreams of becoming a more productive person.  He needs more job training and needs Department of Veterans Affairs (VA) benefits. 

3.  The applicant provides no supporting 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.  On 12 April 1974, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training to include the Basic Airborne Course and was awarded military occupational specialty (MOS) 11C1P (Infantry Indirect Fire Crewman with parachutist qualifications).

3.  On 4 September 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for missing company formation.  The punishment included a forfeiture of $84.00 pay per month for 1 month and 2 days of restriction and extra duty.

4.  On 27 January 1975, the applicant accepted NJP for willfully disobeying a lawful order (twice); for missing company formation (twice); and for being absent without leave for 9 days.  His punishment included reduction to pay grade E1 (suspended), confinement for 7 days, and a forfeiture of $70.00 pay per month for 1 month.  On 6 February 1975, the suspended portion of the punishment was vacated.

5.  On 2 April 1975, the applicant was barred from reenlistment. 

6.  On 11 April 1975, the applicant accepted NJP for being AWOL 1 day and for willfully disobeying a lawful order (twice).  The punishment included reduction to pay grade E1 (suspended), confinement for 7 days, and a forfeiture of $70.00 pay per month for 1 month.  The punishment included a forfeiture of $60.00 pay per month for 1 month and 14 days of extra duty and restriction. 

7.  On 30 July 1975, at a mental status evaluation, the applicant’s behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.  He was capable of participating in the separation process.

8.  On 30 July 1975, the commander notified the applicant of his intention to recommend him for separation from the service due to unfitness.  The decision was based on the applicant’s lack of motivation and responsibility, constant disrespect exhibited towards the chain of command, and his substandard performance of duties.

9.  The applicant consulted with counsel, waived his rights and elected not to make a statement in his own behalf.  

10.  On 18 August 1975, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, Chapter 13, for unfitness.  
   
11.  Records show the applicant was AWOL during the periods from 
28 August to 9 September 1975; from 15 September to 14 October 1975; and from 17 October to 21 November 1975.  There is no record of what, if any punishment was administered for this misconduct.

12.  On 20 October 1975, the appropriate authority approved the recommendation and directed that the applicant be issued an Undesirable Discharge Certificate.  Accordingly, he was discharged on 21 November 1975.  He had completed 1 year, 4 months, and 12 days of creditable active duty and he had 88 days of lost time.

13.  Chapter 13, of Army Regulation 635-200 (Personnel Separations), applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5a provided for the separation of individuals for unfitness whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.

DISCUSSION AND CONCLUSIONS:

1.  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.

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

3.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

4.  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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080009833



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