IN THE CASE OF:	  

		BOARD DATE:	        26 MARCH 2009

		DOCKET NUMBER:  AR20080018224 


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 be upgraded to an honorable or a general discharge.

2.  The applicant states that he is not receiving honorable discharge benefits.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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.  On 14 July 1969, the applicant enlisted in the Regular Army in Baltimore, Maryland, for 2 years in the pay grade of E-1.  He successfully completed his training as a cook.  He was promoted to the pay grade of E-2 on 7 October 1969.
3.  Nonjudicial punishment (NJP) was imposed against the applicant on 21 October 1969 for striking another Soldier in the face.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction, and extra duty.

4.  On 19 December 1969, NJP was imposed against the applicant for striking another Soldier on the forehead.  His punishment consisted of a forfeiture of pay and extra duty.

5.  On 16 April 1970, the applicant was convicted pursuant to his plea by a special court-martial of stealing a Polaroid camera, a shaver, and a radio from another Soldier.  His sentence consisted of confinement at hard labor, a reduction in pay grade, and a forfeiture of pay.

6.  On 4 May 1971, NJP was imposed against the applicant for being absent without leave (AWOL) from 2 November 1970 until 6 November 1970, from 7 December 1970 until 9 December 1970, and from 31 March 1971 until 6 April 
1971.  His punishment consisted of a reduction in pay grade, restriction, and extra duty.

7.  On 28 June 1971, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge - Unfitness and Unsuitability) for unfitness.  The commander cited the applicant's AWOL incidents, stealing, assaults, and misconduct as the basis for his recommendation for discharge.

8.  The applicant acknowledged receipt of the notification on 30 June 1971 and, after consulting with counsel, he waived his rights and opted not submit a statement in his own behalf.

9.  The appropriate authority approved the recommendation for discharge on 10 July 1971 and recommended the issuance of an Undesirable Discharge Certificate.

10.  Accordingly, on 19 July 1971, the applicant was discharged under the provisions of Army Regulation 635-212, paragraph 6, for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The DD Form 214 that he was furnished shows that he completed 1 year, 9 months, and 20 days of total active service.  He was furnished an Undesirable Discharge Certificate.

11.  On 10 October 1972, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.
12.  Army Regulation 635-212, in effect at the time, set forth the authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

13.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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.

14.  Paragraph 3-7 also 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 contends, in effect, that his undesirable discharge should be upgraded to a general or an honorable discharge.

2.  His contentions have been noted.  However, 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.

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

4.  The evidence of record shows that he was convicted by a special court-martial and he had NJP imposed against him for striking other Soldiers.  He also had several AWOL incidents which resulted in confinement at hard labor, reductions in pay grade, restriction, and/or extra duty.  Considering his numerous acts of indiscipline, it does not appear that the type of discharge that he received was too harsh.

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

6.  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.



      _________XXX________________
                 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)                                         AR20080018224



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ABCMR Record of Proceedings (cont)                                         AR20080018224



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