IN THE CASE OF:	  

		BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090008135 


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 under other than honorable conditions discharge to honorable.

2.  The applicant states that he entered the Army in 1970 with the intent to make it a career and was well on his way until he arrived in Germany where he encountered four Soldiers who did not like him and ultimately participated in railroading him out of the Army.  He adds that he was threatened with injury and/or death and had his records altered to show poor conduct and efficiency reviews.  He also states that when he took leave in the winter of 1971-1972, the four individuals tried to get him not to return and when he returned, he was discharged with an under other than honorable conditions character of service.  He further states that although his service records contain some Article 15's, overall he had a good record, specifically from March 1971 to July 1971.  He concludes that he is saddened that he was unable to serve more because of the prejudice of four dishonest individuals who used their ranks and/or positions to ruin another Soldier’s life.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 30 November 1972, and a copy of his bar to enlistment/reenlistment form, dated 27 September 1972, 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 11 September 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty 36K (Wireman).  The highest rank he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records also show he served in Germany from on or about 17 March 1971 to on or about 28 November 1972.  His records further show he was awarded the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 30 November 1972 under the provisions of paragraph 6a(1) of Army Regulation 635-212 (Personnel Separations) by reason of unfitness with a character of service of under other than honorable conditions.  He completed 2 years, 2 months, and 20 days of creditable active service.

5.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 
15-year statute of limitations.

6.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation 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:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

7.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy 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.

8.  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 to honorable.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 30 November 1972 under the provisions of Army Regulation 635-212 by reason of unfitness.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.

3.  There is no evidence in the applicant’s records and the applicant did not provide any substantiating evidence that shows he encountered difficulties within his unit or that he was prejudiced against, mistreated, picked on, harassed, or singled out.  Even if those allegations were true, there were many other avenues the applicant could have used to address those issues had he chosen to use them.

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 did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.
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)                                         AR20090008135



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ABCMR Record of Proceedings (cont)                                         AR20090008135



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