IN THE CASE OF:	  

		BOARD DATE:	        3 November 2009

		DOCKET NUMBER:  AR20090009982 


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 to a general, under honorable conditions discharge.

2.  The applicant states that he was not court-martialed, but rather he asked to go home for personal problems and he was given an undesirable discharge.  He adds that he has some health problems and this is the main reason he would like his discharge upgraded.

3.  The applicant did not submit 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 (RA) on          10 January 1972 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11E (Armor Crewmember).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records also show he was awarded the National Defense Service Medal.

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

	a.  on 29 November 1972, for failing to go at the time prescribed to his appointed place of duty on or about 26 November 1972.  His punishment consisted of a forfeiture of $50.00 pay for 1 month and 7 days of restriction;

	b.  on 2 April 1973, for failing to go at the time prescribed to his appointed place of duty on or about 27 March 1973.  His punishment consisted of 14 days of restriction and extra duty; and 

	c.  on 3 May 1973, for twice failing to go at the time prescribed to his appointed place of duty on or about 1 and 2 May 1973.  His punishment consisted of a forfeiture of $80.00 pay for 1 month and 14 days of restriction.

5.  On 6 July 1973, the applicant pled guilty at a Special Court-Martial to one specification of being absent without leave (AWOL) during the period on or about 29 May 1973 to on or about 21 June 1973.  The Court sentenced him to confinement at hard labor for 3 months, a forfeiture of $200.00 pay per month for 3 months, and a reduction to private (PV1)/E-1.  The sentence was adjudged on 6 July 1973 and was approved on 13 July 1973.

6.  The applicant’s record contains a list of incidents of discreditable nature that were not punished under the UCMJ, which included multiple instances of absence from formation and multiple instances of failing barracks and/or in ranks inspections.

7.  On 17 August 1973, the applicant’s immediate commander notified the applicant of his intent to initiate action to eliminate him 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. 

8.  On 17 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 unfitness under the provisions of Army Regulation 635-200.  He further waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and he elected not to submit a statement in his own behalf.  The applicant further indicated that he understood that he might expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge 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.

9.  On 17 August 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.

10.  On 17 August 1973, the applicant’s intermediate commander recommended approval of the applicant’s discharge.  

11.  On 24 August 1973, the separation authority approved the applicant’s discharge under the provisions of chapter 13 of Army Regulation 635-200 and directed that he be issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 27 August 1973.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with a character of service as under conditions other than honorable.  This form further shows he completed 1 year, 4 months, and 20 days of creditable active military service and he had 88 days of lost time.

12.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s
15-year statute of limitations.

13.  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.

14.  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 undesirable discharge should be upgraded to a general, under honorable conditions discharge.

2.  The evidence of record shows the applicant displayed a pattern of frequent incidents of a discreditable nature with civil or military authorities as evidenced by his three instances of nonjudicial punishment, one instance of Special Court-Martial, and several other infractions that were not punished under the UCMJ.  Accordingly, his immediate commander initiated separation action against him.

3.  The evidence of record also shows that 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 Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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, he is not entitled to 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)                                         AR20090009982



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ABCMR Record of Proceedings (cont)                                         AR20090009982



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