IN THE CASE OF:	  

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090010084 


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 undesirable discharge be upgraded.

2.  The applicant states he was not given the help or the opportunity to correct things and to make the Service work [for him].  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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 23 April 1974.   His highest grade attained was private first class, E-3.  

3.  On 13 September 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for participating in a breach of peace by wrongfully engaging in a fist fight.  

4.  On 29 April 1975, the applicant accepted NJP under Article 15 for failing to go to his appointed place of duty.  

5.  On 16 October 1975, the applicant accepted NJP under Article 15 for being absent without leave (AWOL) from 29 September 1975 to 1 October 1975.

6.  On various occasions between September 1974 and October 1975, the applicant received numerous adverse counseling statements for the following:  failing to report; fighting in billets; operating an assigned vehicle in a reckless manner; late for formation, absent from appointed place duty; and failure to follow instructions.

7.  On 3 November 1975, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200, paragraph 13-5a(4), for unfitness.  He was advised of his rights.

8.  On 7 November 1975, the applicant consulted with legal counsel, requested consideration of his case by a board of officers, requested personal appearance before a board of officers, and did not submit statements in his own behalf.  He acknowledged that he might encounter substantial prejudice in civilian life in the event a undesirable discharge (under conditions other than honorable) was issued to him.  He further understood that he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if an undesirable discharge was issued.

9.  A board of officers met on 16 January 1976.  The board recommended that the applicant be discharged from the service because of unfitness with issuance of an Undesirable Discharge Certificate.  

10.  The appropriate convening authority approved the findings and recommendations of the board, waived rehabilitation requirements, and directed issuance of an Undesirable Discharge Certificate.

11.  On 12 April 1976, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(4), for unfitness – an established pattern of shirking with issuance of an undesirable discharge characterized as under other than honorable conditions.  At the time of his discharge, he completed 1 year, 


11 months, and 18 days of active military service with 2 days of lost time due to AWOL.

12.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.  

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

14.  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.

15.  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 he was not given the help or the opportunity to correct things.  However, there is no evidence of record to substantiate his claims.  

2.  In the absence of evidence to the contrary, the applicant's discharge proceedings under the provisions of Army Regulation 635-200, paragraph 
13-5a(4) for unfitness, are presumed to have been administratively correct and in conformance with applicable regulations.

3.  The applicant's service record shows he received three Article 15s and numerous adverse counseling statements regarding his duty performance.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgrade to an honorable or general discharge.

4.  There is no evidence of record which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his discharge.  

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)                                         AR20090010084





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ABCMR Record of Proceedings (cont)                                         AR20090010084



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