IN THE CASE OF:	  

		BOARD DATE: 	        18 June 2009

		DOCKET NUMBER:  AR20090000487 


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.

2.  The applicant provides no explanation. 

3.  The applicant provides no additional documentary evidence 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 enlisted in the Regular Army on 22 January 1973 for a period of 4 years.  

3.  On 13 March 1973, while in basic combat training, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 
8 March 1973 to 11 March 1973.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.   

4.  The applicant completed basic combat training and advanced individual training in military occupational specialty 11B (light weapons infantryman). 

5.  On 20 October 1973, nonjudicial punishment was imposed against the applicant for disobeying two lawful orders.  His punishment consisted of a forfeiture of pay and extra duty.   

6.  On 7 November 1973, a bar to reenlistment was imposed against the applicant.

7.  On 26 December 1973, nonjudicial punishment was imposed against the applicant for disobeying two lawful orders and being AWOL for 3 hours.  His punishment consisted of a forfeiture of pay, to serve 7 days of correctional custody, and a reduction to E-1 (suspended).  On 14 February 1974, the suspended portion of the sentence was vacated.    

8.  On 4 April 1974, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty and two specifications of using disrespectful language.  His punishment consisted of a forfeiture of pay and extra duty.   

9.  Records show the applicant was counseled on 10 occasions by his chain of command with no positive results.

10.  On 8 April 1974, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. 

11.  On 10 April 1974, the applicant consulted with counsel and waived consideration of his case by a board of officers, waived representation by counsel, and elected not to submit a statement on his behalf.     

12.  The separation authority action is not available.  However, intermediate commanders recommended approval of the recommendation for separation.
 
13.  Accordingly, the applicant was discharged on 13 May 1974 with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 3 months, and 19 days of total active service with 3 days of lost time due to AWOL.  

14.  On 23 November 1977, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  Chapter 
13, paragraph 13-5a(1), provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  

16.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

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

3.  The applicant's record of service included numerous adverse counseling statements, a bar to reenlistment, four nonjudicial punishments, and 
3 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a 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)                                         AR20090000487





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ABCMR Record of Proceedings (cont)                                         AR20090000487



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