IN THE CASE OF:	  

		BOARD DATE:	 18 February 2009 

		DOCKET NUMBER:  AR20080018191 


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 general discharge, characterized as under honorable conditions, be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was not informed of the rampant homosexuality accepted and promoted in the Army at that time.  He states, in effect, that he was punished for reporting a gay man who propositioned him, which ruined his career as a Soldier. 

3.  The applicant provides no 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 shows he enlisted in the Regular Army on 
15 November 1973.  He successfully completed basic combat training at Fort Ord, California and advanced individual training at Fort Knox, Kentucky.  He was awarded military occupational specialty (MOS) 11E (Armor Crewman).  He was advanced to the pay grade of E-3 on 28 June 1974.  This was the highest grade that he held.

3.  On 26 December 1974 the applicant received non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from Company C, 2/77th Armor, 9th Infantry Division, Fort Lewis, Washington, from on or about 0700 hours, 5 November 1974 until on or about 1430 hours,17 December 1974.  He was dropped from the rolls on 5 December 1974 and returned to military control on 17 December 1974. His punishment consisted of reduction to the pay grade of E-2, forfeiture of $100.00 per month for a period of two months, and restriction and extra duty for a period of thirty days.  The applicant did not appeal the punishment.

4.  On 25 February 1975, the Federal Bureau of Investigation apprehended the applicant after he had absented himself from his unit without authority on
11 February 1975.  The applicant was returned to his assigned unit where he received nonjudicial punishment on 26 February 1975.  Punishment for his absence included a reduction to the pay grade of E-1.  A copy of the Article 15 is not available; however, a copy of the order, Special Order 58, paragraph 56, dated 27 February 1975, is on file in his personnel records.

5.  On 21 May 1975, the applicant received nonjudicial punishment under the provisions of Article 15 of the UCMJ for assaulting a superior noncommissioned officer and for willfully disobeying the orders of his superior noncommissioned officer.  The punishment imposed was forfeiture of $60.00 pay per month for two months, extra duty for twenty five days, and restriction for twenty days.  The applicant appealed the punishment, but on 12 June 1975, his appeal was denied.

6.  On 10 July 1975, the applicant received nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to go to at the time prescribed to his appointed place of duty.  The punishment imposed was forfeiture of $50.00 per month for a period of one month and fourteen days of extra duty.  The applicant did not appeal the punishment.

7.  The applicant was counseled for misconduct on numerous occasions from August 1975 through November 1975.  These counseling were documented and 
summarized in paragraph 2 of the commander's notification letter to the 

applicant, Subject:  Expeditious Discharge, dated 10 November 1975.  The counselings included:

	a.  on 5 August 1975, the applicant was counseled for being late for formation;

	b. on 13 August 1975, the applicant was counseled on the proper upkeep of military equipment; 

	c.  on 19 August 1975, the applicant was counseled on the proper appearance of a Soldier;

	d.  on 29 August 1975, the applicant was counseled on needing a haircut;

	e.  on 3 September 1975, the applicant was counseled on respect to his superiors;

	f.  on 9 September 1975, the applicant was counseled on needing clean fatigues;

	g.  on 23 September 1975, the applicant was counseled on the effects of a bad record on a military career;

	h.  on 29 September 1975, the applicant was counseled on being late for formation;

	i.  on 3 October 1975, the applicant was counseled on being late for formation and keeping his personal equipment in order;

	j.  on 9 October 1975, the applicant was counseled on the proper appearance of a Soldier;

	k.  on 16 October 1975, the applicant was counseled on needing a haircut;

	l.  on 21 October 1975, the applicant was counseled on the proper bearing of a Soldier;

	m.  on 10 November 1975, the applicant was counseled on the effects of AWOL on a military career; and

	n.  on 10 November 1975, official actions were initiated for expeditious discharge of the applicant.

8.  On 11 November 1975 the applicant acknowledged notification of his proposed discharge.  He voluntarily consented to discharge from the United States Army.  He waived his rights to submit a statement in his own behalf.  The applicant acknowledged that he understood he might encounter substantial prejudice in civilian life and acknowledged that he had been provided the opportunity to consult with an officer of the Judge Advocate General’s Corps.  He stated that he understood that he could, prior to the date the discharge authority approved his discharge, withdraw his voluntary consent to his discharge and he further understood that if he declined to accept the discharge voluntarily, that he could at a future time, if his conduct warranted, be subjected to separation under other provisions of law or regulation.

9.  The commander, the acting first sergeant, and the platoon sergeant all recommended approval of the applicant's discharge as the applicant’s military record indicated that retention would not be practical based on the applicant’s inability to adjust to military life, lack of self discipline, and his requirement for constant supervision.  They recommended that the applicant be released from active duty expeditiously.

10.  The separation authority approved the applicant's request and directed that he be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37. It was also directed that the applicant be furnished a General Discharge Certificate. 

11.  The evidence shows the applicant was discharged on 21 November 1975, in pay grade E-2.  He had completed 1 year and 11 months of total active service.  The applicant also had 37 days of lost time due to being AWOL.  The applicant’s service was characterized as under honorable conditions.  

12.  There is no evidence that the applicant submitted a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. 

13.  Army Regulation 635-200, chapter 5, in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government.  Separation under this chapter included provisions for discharging Soldiers for a variety of reasons.  Paragraph 5-37 stated, in pertinent part, that those personnel whose performance of duty, acceptability for the service, and potential for continued effective service, which fell below the standards required, would be discharged.  It also stated that discharge under this paragraph was limited to personnel who failed to be advanced to the pay grade of E-2 after 4 months of active service and personnel who failed to demonstrate potential to justify advancement to the pay grade of E-3 after attaining the normal time-in 
service and time-in-grade criteria for promotion to the pay grade of E-3, without wavier.  The separation authority could direct a general discharge or when other circumstances clearly warranted, an honorable discharge.

14.  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.

15.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.  

2.  The evidence of record shows the applicant developed a pattern of misconduct and in addition allowed his performance to deteriorate even though it is apparent the unit gave him every opportunity to succeed.  The applicant subjected himself to numerous counseling and received non-judicial punishment four times.

3.  The applicant's unit commander felt that the applicant had extreme difficulty in adjusting to military life, he lacked self-discipline, and required constant supervision to accomplish even the simplest of tasks.  He also felt that rehabilitation for the applicant was not practical nor would it be successful and that the applicant should be released from the United States Army as soon as possible.

4.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he was not then, and is not now, entitled to a fully honorable discharge.


5.  The applicant has provided no evidence to show that his discharge was unjust.  

6.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons therefore were appropriate, considering all the facts of the case.  

7.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general 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)                                         AR20080018191



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ABCMR Record of Proceedings (cont)                                         AR20080018191



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