IN THE CASE OF:	

		BOARD DATE:	20 August 2009    

		DOCKET NUMBER:  AR20090005955 


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, an upgrade of his undesirable discharge.

2.  The applicant states that he was young at the time and that he was detained for the convenience of the Government.  He also states that he needs his discharge upgraded due to age and illness.  

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 was born on 3 September 1952 and enlisted in the Regular Army (RA) for a period of 3 years at 18 years of age on
14 January 1971.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 76V (Equipment Storage Specialist).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4. 

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

	a.  on 11 November 1971, for failing to go at the time prescribed to his appointed place of duty on or about 8 November 1971.  His punishment consisted of a forfeiture of $20.00 pay per month for 2 months; 

	b.  on 27 April 1972, for wrongfully operating a vehicle (fork lift) by steering said vehicle with one hand and holding an object with the other and thereby causing said vehicle to strike and injure another Soldier on or about 10 April 1972.  His punishment consisted of a forfeiture of $50.00 pay;

	c.  on 14 December 1972, for being disrespectful in language toward a noncommissioned officer on or about 30 November 1972.  His punishment consisted of a forfeiture of $30.00 pay and an oral reprimand; 

	d.  on 28 March 1973, for twice disobeying a lawful order on or about 14 March 1973.  His punishment consisted of a forfeiture of $40.00 pay, 14 days of restriction, and 14 days of extra duty; 

	e.  on 18 May 1973, for leaving his assigned place of duty without authority on or about 18 May 1973.  His punishment consisted of 3 days of extra duty; 

	f.  on 24 May 1973, for leaving his assigned place of duty without authority on or about 24 May 1973 and behaving himself in a disrespectful way toward a commissioned officer on or about 24 May 1973.  His punishment consisted of a reduction to private first class (PFC)/E-3 (suspended days) and a forfeiture of $50.00 pay.  However, on 13 June 1973, he again disrespected a commissioned officer resulting in the vacation of his suspended punishment of a reduction to PFC/E-3; and


	g.  on 26 June 1973, for being disrespectful toward a commissioned officer on or about 25 June 1973.  His punishment consisted of a reduction to private (PV2)/E-2 (suspended for 90 days) and a forfeiture of $70.00 pay.  However, on 9 July 1973, he disobeyed a lawful order, resulting in the vacation of his suspended punishment of a reduction to PV2/E-2.

4.  On 20 July 1973, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his habitual shirking of duties, failure to respond to counseling by members of his chain of command, constant involvement in minor infractions of rules, and frequent incidents of a discreditable nature.

5.  On 3 July 1973, the applicant’s immediate commander notified the applicant of his intent to initiate elimination from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of unfitness.  Specifically, the immediate commander cited his frequent incidents of a discreditable nature with civil or military authorities. 

6.  On 1 August 1973, the applicant acknowledged receipt of the notification of his pending separation action.  He was advised by counsel of the basis for the contemplated action to separate him for unsuitability under the provisions of Army Regulation 635-200.  He further requested consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and elected not to submit a statement.  The applicant further indicated that he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and may encounter substantial prejudice in civilian life.

7.  On 1 August 1973 (erroneously shown as 30 July 1973), the applicant’s immediate commander initiated elimination action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness.

8.  On 22 August 1973, a board of officers convened at Wiley Barracks, Germany, to consider whether the applicant should be eliminated from the service with the applicant and his appointed military counsel present.  The board initially recessed without reaching a finding.  However, after calling additional 

witnesses, the board reconvened on 30 August 1973 and recommended the applicant be separated from the Army under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness and be furnished an Undesirable Discharge Certificate.  On 2 August 1973, the applicant’s intermediate commander recommended approval of the elimination action.

9.  On 14 September 1973, the convening/separation authority approved the board of officer’s findings and recommendations and directed the applicant be discharged under the provisions of paragraph 13-5a of Army Regulation 635-200 by reason of unfitness and that he be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 31 October 1973.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 2 years, 9 months, and 17 days of creditable active military service.

10.  On 17 October 1980, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

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.  AR 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 undesirable discharge should be upgraded.

2.  The evidence of record shows that the applicant was 18 years of age at the time of his enlistment and between 19 and 20 years of age at the time of his various offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of misconduct were the result of his age.

3.  The evidence of record shows the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.  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 did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant's requested relief in this 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)                                         AR20090005955



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ABCMR Record of Proceedings (cont)                                         AR20090005955



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