IN THE CASE OF:	  

		BOARD DATE:	       24 March 2009

		DOCKET NUMBER:  AR20080018576 


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 general.

2.  The applicant states that during the administration of then President Nixon, it was government policy that all undesirable discharges would be upgraded to general. 

3.  The applicant provides no supporting documentation with 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 2 November 1970, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 36K (Field Wireman).

3.  On 4 March 1971, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to obey a lawful order from his superior noncommissioned officer.  The punishment included a forfeiture of $20.00 pay per month for 1 month and 10 days restriction and extra duty.  The applicant did not appeal the punishment.

4.  On 20 April 1971, the applicant accepted NJP for being absent without leave (AWOL) during the period from on or about 10 to 19 April 1971.  The punishment included a forfeiture of $22.00 pay per month for 1 month.  The applicant did not appeal the punishment.

5.  On 4 May 1971, the applicant was assigned for duty as a wireman with the 10th Combat Aviation Battalion, in the Republic of Vietnam.

6.  On 20 August 1971, the applicant accepted NJP for careless discharge of an M-16 rifle in the vicinity of the Movement Control Center.  The punishment included a forfeiture of $44.00 pay per month for 1 month.  The applicant did not appeal the punishment.

7.  On 25 September 1971, the applicant accepted NJP for being absent without leave for a period of less than 1 day and for failing to go to his appointed place of duty 2 days later.  The punishment included a forfeiture of $27.00 pay per month for 1 month and reduction to pay grade E-2.  The applicant did not appeal the punishment.

8.  On 28 September 1971, the applicant accepted NJP for failing to go to his appointed place of duty on three separate occasions.   The punishment included a forfeiture of $25.00 pay per month for 1 month, reduction to pay grade E-1, and 14 days restriction.  The applicant did not appeal the punishment.

9.  On 28 September 1971, a medical examination found him to be qualified for separation with a physical profile of 1-1-1-1-1-1.  A report of psychiatric examination, dated 28 September 1971, showed that the applicant's behavior was normal.  He was fully alert and oriented and displayed a normal mood.  His speech was coherent.  His affect was normal.  There was no evidence of thought disorder.  His judgment was good, and his insight was fair.  His intelligence was considered normal and there was no evidence of drug or alcohol [abuse].  There was no psychiatric disorder.  There was evidence of a mild character/behavior disorder manifested by chronic difficulty with authority figures, moderate irresponsibility and trouble delaying gratification.  He was able to distinguish right from wrong and to adhere to the right.

10.  On 30 September 1971, the applicant's company commander wrote the following statement: "[the applicant] has been assigned to Commo as a Switch Board Operator since 17 May 1971.  During this period, [the applicant] has been a problem.  He is constantly in some kind of trouble.  He is never on time and if given a job, he requires close supervision to get any work from him.  His attitude toward the Army is unsatisfactory.  I have counseled [the applicant] on different occasions about his conduct and behavior with no results.  I recommend [the applicant] be eliminated from the Army under provisions of Army Regulation 635-212."

11.  On 2 October 1971, the applicant’s unit commander initiated separation under the provisions of Army Regulation 635-212 for unfitness.  The commander based his recommendation on the applicant's drug addiction [not mentioned anywhere else in the records], shirking of assigned duties, marginal conduct, and failure to respond to frequent counseling.

12.  On 8 October 1971, the applicant received legal counseling and waived consideration of his case by a board of officers, waived a personal appearance, waived representation by counsel, and declined to submit a statement in his own behalf.

13.  On 13 October 1971, the appropriate authority approved the separation action and directed issuance of an Undesirable Discharge Certificate.  

14.  On or about 15 October 1971, the applicant returned to the United States.  On 27 October 1971, he was discharged accordingly.  He had completed 
11 months and 17 days of creditable active service and had 9 days lost time due to AWOL.

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  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.


17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that it was government policy that all undesirable discharges would be upgraded to general.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.  

3.  There is no evidence of record, nor has the applicant provided sufficient evidence to support upgrade of his discharge.  

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct and lost time also renders his service unsatisfactory. Therefore, he is not entitled to a general discharge.

5.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

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 this requirement.

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)                                         AR20080018576





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ABCMR Record of Proceedings (cont)                                         AR20080018576



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