IN THE CASE OF:	

		BOARD DATE:	  28 October 2008

		DOCKET NUMBER:  AR20080011672 


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, in effect, that his undesirable discharge under other than honorable conditions be upgraded.

2.  The applicant states he had an enlistment guarantee to go to school and receive four engineering degrees.  He also states he never failed any classes, and both times when he received the degrees he had orders to go overseas.  He states his commander refused his right to finish school and put him out of the service.  He further states he did not do anything to warrant a dishonorable discharge.  He additionally states he enlisted for 3 years with the intention of completing his duty.

3.  The applicant provides no additional evidence or official documentation in support of 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's military personnel record shows he enlisted in the Regular Army on 6 November 1974 for a period of 3 years.  He enlisted to receive training in the military occupational specialty (MOS) 52D (Power-Generation Equipment Repairer).

3.  On 21 March 1975, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for theft of a carton of cigarettes.

4.  On 11 April 1975, the applicant was awarded the MOS 52B (Power Generation Equipment Operator/Mechanic).

5.  On 15 May 1975, the applicant entered training for the MOS 52D.

6.  On 23 July 1975, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) during the periods from 29 May 1975 to 30 May 1975 and from 18 June 1975 to 23 June 1975.

7.  On 9 September 1975, the applicant was evaluated by a major of the Medical Corps.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

8.  On 19 September 1975, the applicant's commander notified him that he was initiating action to discharge him under the provisions of paragraph 13-5a(1) of Chapter 13 of Army Regulation 635-200 (Personnel Separations) for unfitness.

9.  The commander advised the applicant of his right to have his case considered by a board officers; to appear in person before a board officers; to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge, and request his case be presented before a board of officers.

10.  On 23 September 1975, the applicant accepted NJP under Article 15, UCMJ, for being AWOL during the periods from 6 August 1975 to 12 August 1975 and 25 August 1975 to 28 August 1975.

11.  On 30 September 1975, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action to accomplish his separation for unfitness.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was submitting statements in his own behalf and that he waived counsel.  

12.  The applicant also acknowledged that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.

13.  The applicant's commander recommended him for discharge under the provisions of Paragraph 13-5a(1) of Army Regulation 635-200 for unfitness.

14.  The applicant's intermediate commanders recommended approval and on 
3 October 1975 the appropriate authority approved the recommendation for discharge under the provisions of Chapter 13 of Army Regulation 635-200 for unfitness due to the applicant's frequent incidents of a discreditable nature with civil or military authorities and directed that the applicant be furnished an undesirable discharge.  

15.  On 8 October 1975, the applicant was discharged under the provisions of chapter 13 of Army Regulation 635-200 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had completed 
10 months and 24 days of active service that was characterized as under other than honorable conditions.  He had 13 days time lost.

16.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

17.  Army Regulation 635-200 (Personnel Separations), then in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1) of Chapter 13, then in effect, provided for discharge of individuals for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  This regulation further provided that an individual separated for unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may have been issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in his or her case.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge under other than honorable conditions should be upgraded.  He contends he enlisted to receive four engineering degrees.  He also contends that he never failed any classes and his commander refused his right to finish school.  He further contends he did not do anything to warrant a dishonorable discharge.

2.  The applicant's enlistment contract shows he was guaranteed training in MOS 52D.  He completed training for MOS 52B and the record shows he was enrolled in training for MOS 52D.  Engineering degrees are not awarded for completion of MOS training.  There is no record of whether the applicant failed any classes during his MOS training.  However, the evidence shows he did not complete training for MOS 52D.

3.  The applicant did not receive a dishonorable discharge.  He was processed for discharge under the provisions of Chapter 13 of Army Regulation 635-200 due to his multiple periods of AWOL.  The applicant's commander notified him of the reasons he was being discharged and the applicant acknowledged he had been advised of this action.

4.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  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.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

7.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.



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)                                         AR20080011672



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ABCMR Record of Proceedings (cont)                                         AR20080011672



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