BOARD DATE:	  16 July 2009

		DOCKET NUMBER:  AR20090006714 


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 general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant makes no statement.

3.  The applicant provides no additional documents 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 21 November 1969 for a period of 3 years.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 63B (wheel vehicle repairman).  His highest grade held was specialist four, E-4.  He was assigned to Alaska in May 1970.

3.  On 21 August 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his unit on 17 August 1970.

4.  On 12 October 1970, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) from 2 September 1970 to 1 October 1970.

5.  On 9 April 1971 and 26 April 1971, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.

6.  On 4 May 1971, the applicant underwent a psychiatric examination.  The psychiatrist indicated that the applicant did not show any symptoms of psychiatric disease and recommended that the applicant be separated from the service under the appropriate administrative regulation deemed appropriate by his command.

7.  On 4 May 1971, the company commander notified the applicant of the pending separation action under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) based on unfitness.  He was advised of his rights.  The applicant's election of rights is not available.

8.  On 10 May 1971, the company commander recommended a waiver of rehabilitation as prescribed in paragraph 7c of Army Regulation 635-212.

9.  On 11 May 1971, the company commander recommended that the applicant be discharged with issuance of an Undesirable Discharge Certificate.  The company commander stated that the applicant received four Article 15s within 9 months, was disrespectful to his superiors, and had trouble dealing with authority figures.  The company commander also stated that counseling and Article 15 punishment had brought only temporary improvement in the applicant's unsatisfactory job performance and poor attitude toward the military.  Further, the company commander stated that the applicant was of no potential value to the military service and separation would be in the best interest of the U.S. Army and the applicant.

10.  The intermediate commander and senior intermediate commander recommended that the applicant be discharged with issuance of an Undesirable Discharge Certificate.
11.  A board of officers convened on 9 July 1971.  The board recommended that the applicant be discharged from the service because of unfitness with issuance of a general discharge.

12.  On 14 July 1971, the separation authority approved the recommendation of the board of officers, waived rehabilitation requirements, and approved the separation action with the issuance of a General Discharge Certificate.

13.  On 21 July 1971, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness – frequent incidents of a discreditable nature with civil or military authorities – with a general under honorable conditions discharge.  He completed 1 year, 7 months, and 2 days of active military service with 29 days of lost time due to AWOL.

14.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within that board's 15-year statute of limitations.

15.  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.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the separation of enlisted personnel.  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Where there have been infractions of discipline, the extent thereof should be considered as well as the seriousness of the offense(s).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record of service shows he received four Article 15s for being absent from his unit to include 29 days of AWOL and for failing to go to his appointed place of duty.

2.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge and characterized his service as general.
3.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants changing his general under honorable conditions discharge to honorable.

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)                                         AR20090006714



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ABCMR Record of Proceedings (cont)                                         AR20090006714



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