IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090007915 


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 discharge be upgraded to honorable.

2.  The applicant states that at the time of his discharge from the Army he was an addict.  He adds that he was addicted to heroin and there was no counsel available. 

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’s record shows he enlisted in the Regular Army and entered active duty on 10 January 1973.  

3.  On 14 June 1973, nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of $60.00, restriction for 14 days, and extra duty for 
14 days. 

4.  On 28 June 1973, NJP was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed.  His punishment consisted of a forfeiture of $40.00 pay and extra duty for 10 days.

5.  On 13 July 1973, NJP was imposed against the applicant for being absent without leave from 29 June to 6 July 1973.  His punishment consisted of a forfeiture of $70.00 pay, reduction to the grade of private (E-1), restriction for 
14 days, and extra duty for 14 days. 

6.  On 3 October 1973, NJP was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on two separate occasions.  His punishment consisted of a forfeiture of $70.00 pay for 1 month.

7.  On 19 July 1973, the company commander notified the applicant of his intent to recommend that he be discharged for unfitness under the provisions of Army Regulation 635-200.

8.  On 27 July 1973, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects and the rights available to him, he requested consideration of his case by a board of officers, to personally appear before a board of officers, and to be represented by counsel.  

9.  The applicant acknowledged that he understood that he could be furnished an Undesirable Discharge Certificate; that he could be deprived of many or all Army benefits; that he could be ineligible for many or all Veterans Administration benefits; and that he could expect to encounter substantial prejudice in civilian life if he received an undesirable discharge.

10.  On 30 July 1973, the company commander recommended that the applicant be discharged for unfitness under the provisions of Army Regulation 635-200.  He cited the applicant's frequent incidents of a discreditable nature with military authorities as justification for the discharge.





11.  On 24 October 1973, a board of officers was convened to determine whether or not the applicant should be discharged under the provisions of Army Regulation 635-200.  The applicant appeared before the board with counsel.  After considering the evidence, the board found that the applicant had received three nonjudicial punishments over a 30-day period; the fourth nonjudicial punishment was received 90 days later; and a fifth nonjudicial punishment was received 30 days thereafter.  The board determined that the applicant's prior and present company commanders indicated that his job performance and attitude were below average and he was not rehabilitatable.  Further, it was noted that at the time the applicant went AWOL, he was having problems in his military occupational school course and he had been recycled.  The applicant said he went AWOL to be relieved from the course.  The board recommended that the applicant be discharged from the service because of unfitness and furnished a General Discharge Certificate.

12.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 15 January 1974 under the provisions of paragraph 
13-5a(1) Army Regulation 635-200 with a general discharge under honorable conditions.  He had completed a total of 11 months and 29 days of creditable service.

13.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the procedures and authority for the separation of enlisted personnel.  Paragraph 13-5a(1) of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  The regulation provided that the individual's commander would report the facts to the next higher commander and recommend that the individual appear before a board of officers.  This board of officers was convened by the commander exercising general court-martial authority jurisdiction.  The board of officers could recommend the individual be discharged for unfitness, discharged for unsuitability, or retained in the service.  This regulation further provided that when an individual was discharged for unfitness they would be issued an Undesirable Discharge Certificate except that an honorable or general discharge may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case.

14.  Army Regulation 635-200 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that his discharge should be upgraded because he was an addict.  There is no evidence in the available records to show the applicant had an addiction problem during his period of military service and/or sought counseling to correct this problem.  Therefore, the applicant’s contention that an addiction problem led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  The applicant appeared with counsel before a board of officers and the board found that the applicant's disciplinary infractions rendered him unfit for retention in the service.  The applicant’s entire record of service was considered.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.  Nevertheless, the board recommended and the applicant received a General Discharge Certificate when it was in the board's purview to recommend that an Undesirable Discharge Certificate be issued. 

3.  The applicant's record of service includes five NJP's.  Based on this 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 renders his service unsatisfactory.  Therefore, there is no basis to upgrade the applicant's discharge to honorable.

4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090007915



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ABCMR Record of Proceedings (cont)                                         AR20090007915



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