IN THE CASE OF:	  

		BOARD DATE:	       28 April 2009

		DOCKET NUMBER:  AR20090001352 


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.

2.  The applicant states, in effect, that he had a good record until his last month of service.

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 19 January 1972 for a period of 3 years.  On 13 April 1972, while in basic combat training, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation (having pornographic literature in his possession).  His punishment consisted of a forfeiture of pay, restriction, and extra duty.  He successfully completed basic combat training.

3.  On 10 July 1972, while in advanced individual training (AIT), nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 3 July 1972 to 7 July 1972.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  On 22 July 1972, while in AIT, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty and breaking restriction.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

5.  On 26 July 1972, while in AIT, nonjudicial punishment was imposed against the applicant for breaking restriction.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

6.  On 1 August 1972, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  His unit commander cited the applicant’s habits and traits of character manifested by frequent acts of misconduct and his negative attitude towards authority.

7.  On 20 September 1972, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf.

8.  On 28 September 1972, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.

9.  On 3 October 1972, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 8 months and 11 days of creditable active service with 4 days lost due to AWOL.

10.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

11.  Army Regulation 635-212, in effect at the time, set forth the basic 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.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  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.

13.  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.  Although the applicant contends that he had a good record until his last month of service, the evidence of record shows his first nonjudicial punishment was in April 1972 and he had three nonjudicial punishments in July 1972.  He was discharged in October 1972.

2.  Since the applicant's record of service included four nonjudicial punishments and 4 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  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.
 
4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
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)                                         AR20090001352



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ABCMR Record of Proceedings (cont)                                         AR20090001352



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