IN THE CASE OF:	  

		BOARD DATE:	       11 AUGUST 2009

		DOCKET NUMBER:  AR20090005327 


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 an upgrade of his undesirable discharge.

2.  The applicant states that when he joined the Army, he intended to make it a career.  He adds that his uncles had an extensive military background during World War I and II, and that one of his uncles received the Bronze Star Medal.  He also states that he had an alcohol problems but was not offered any treatment or counseling at the time of his discharge and that if he had been treated properly he would have continued his career.  

3.  The applicant did not provide any additional documentary evidence 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 records show he enlisted in the Regular Army for a period of 3 years on 30 July 1973.  He completed basic combat and advanced individual training and was awarded military occupational specialty 36C (Lineman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant’s records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 19 March 1974, for disobeying a lawful order on or about 19 March 1974.  His punishment consisted of 14 days of extra duty;

	b.  on 29 April 1974, for disobeying a lawful order from a superior noncommissioned officer (NCO) on or about 23 April 1974 and failing to go at the time prescribed to his appointed place of duty on or about 26 April 1974.  His punishment consisted of reduction to PVT/E-1 and 7 days of extra duty.  He appealed his punishment and the appeal was denied on 24 May 1974; and

	c.  on 15 July 1974, for failing to go at the time prescribed to his appointed place of duty (twice) on or about 10 July 1974 and disobeying a lawful order on or about 10 July 1974.  His punishment consisted of a forfeiture of $76.00 pay, 14 days of extra duty, and 14 days of restriction. 

4.  On 23 October 1974, the applicant pled guilty at a special court-martial to one specification of being absent without leave (AWOL) during the period on or about 4 September 1974 through on or about 26 September 1974.  He also pled not guilty to two specifications of willfully disobeying a lawful order from an NCO on or about 26 September 1974 and 8 October 1974.  The court found him guilty of being AWOL sentenced him to confinement at hard labor for 60 days, a forfeiture of $200.00 pay for 2 months, and a reduction to PVT/E-1.  The sentence was adjudged on 23 October 1974 and approved on 4 November 1974.

5.  On 3 December 1974, the applicant’s immediate commander notified the applicant of his intent to initiate elimination action against him in accordance with paragraph 13-5 of Army Regulation 635-200 (Personnel Separations) for unfitness, frequent incidents of a discreditable nature.  

6.  On 3 December 1974, the applicant consulted with counsel and acknowledged notification of his pending separation action.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement.  He further acknowledged that he understood he could encounter substantial prejudice in 

civilian life if an undesirable discharge was issued to him.  He also acknowledged he understood as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

7.  On 3 December 1974, the applicant’s immediate commander initiated action to eliminate the applicant from the service in accordance with paragraph 13-5 of Army Regulation 635-200 by reason of unfitness.  The immediate commander cited the applicant’s frequent incidents of a discreditable nature and that the applicant had demonstrated little desire to return to duty and that he received considerable counseling by his chain of command and members of other professional staff agencies, but he failed to react constructively to the rehabilitative program.

8.  On 3 December 1974, the applicant’s intermediate commander recommended approval of the applicant’s discharge and a waiver of any further rehabilitation. 

9.  On 6 December 1974, the separation authority waived the requirement for a rehabilitative transfer and approved the applicant's discharge for unfitness under the provisions of Army Regulation 635-200 and directed that he be furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 9 December 1974.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time confirms he was discharged with an undesirable discharge.  This form further shows he completed 1 year, 2 months, and 6 days of creditable active military service and he had 64 days of lost time.

10.  On 28 July 1982, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5 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, 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.  The applicant contends that his discharge should be upgraded.  

2.  There is no evidence in the applicant's record that indicates he suffered from an alcohol problem or that he addressed this alleged problem with his chain of command or other support channels.  

3.  The applicant's record reveals a history of misconduct and/or indiscipline to include three instances of nonjudicial punishment and one instance of a court-martial.  Accordingly, he was recommended for separation by his chain of command and his separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case. 

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge or an honorable 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.



      _______ _   _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)                                         AR20090005327



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ABCMR Record of Proceedings (cont)                                         AR20090005327



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