IN THE CASE OF:	  

		BOARD DATE:	      12 November 2009 

		DOCKET NUMBER:  AR20090010930 


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.

2.  The applicant states that he received bad advice from his counsel and that there was a collusion between his counsel and the board of officers.  He adds that he is totally patriotic and believes in America and wants to become a productive member of the society.

3.  The applicant did not provide 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) for a period of 3 years on 19 October 1970.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 13A (Field Artilleryman).  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 served in Germany from on or about 23 May 1972 to on or about 24 December 1972.  His records further show he was awarded the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

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

	a.  on 16 February 1971 for disobeying a lawful order on or about 12 February 1971.  His punishment consisted of a forfeiture of $26.00 pay and a reduction to private (PVT)/E-1;

	b.  on 17 March 1971, for absenting himself from his appointed place of duty without authority and with intent to avoid a field exercise on or about 17 March 1971.  His punishment consisted of a forfeiture of $30.00 pay and 14 days of restriction and extra duty;

	c.  on 12 April 1971, for failing to go at the prescribed time to his appointed place of duty on or about 8 April 1971.  His punishment consisted of a forfeiture of $30.00 pay;

	d.  on 23 June 1971, for failing to go at the prescribed time to his appointed place of duty on or about 21 June 1971.  His punishment consisted of a forfeiture of $32.00 pay; and

	e.  on 28 June 1971, for failing to go at the prescribed time to his appointed place of duty on or about 27 June 1971.  His punishment consisted of 14 days of restriction extra duty. 

5.  On 14 July 1971, court-martial charges were preferred against the applicant for seven specifications of failing to go at the time prescribed to his appointed place of duty, six specifications of breaking restriction, and one specification of being derelict in the performance of his duties. 



6.  On 19 July 1971, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions; the maximum permissible punishment authorized under the UCMJ; the possible effects of a request for discharge; and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  On 27 July 1971, the separation authority examined the applicant's request for discharge along with his entire record of service but found no useful purpose for granting the request and determined that it was not in the best interest of the Army.  Accordingly, he denied the applicant's request. 

8.  On 2 August 1971, the applicant pled guilty at a Special Court-Martial to Charge I and its six specifications of failing to go at the time prescribed to his appointed place of duty on divers occasions and pled not guilty to Charge II and its four specifications of failing to go at the time prescribed to his appointed place of duty on divers occasions.  The Court found him guilty of the Charge I and its specifications and Charge II and three of its four specifications and Charge II.  The Court sentenced him to confinement at hard labor for 3 months, a forfeiture of $75.00 pay for 3 months, and a reduction to private (PVT)/E-1.  The sentence was adjudged on 2 August 1971 and it was approved on 6 August 1971.

9.  The applicant's records reveal he accepted more NJP under the provisions of Article 15 of the UCMJ as follows

	a.  on 19 January 1972, for twice failing to go at the prescribed time to his appointed place of duty on or about 6 and 13 January 1972.  His punishment consisted of a forfeiture of $70.00 pay and 10 days of restriction and extra duty;

	b.  on 24 March 1972, for willfully disobeying a lawful order from his commanding officer on or about 21 March 1972.  His punishment consisted of a forfeiture of $140.00 pay per month for 2 months and a reduction to private (PV2)/E-2; and

	c.  on 1 June 1972, for failing to go at the prescribed time to his appointed place of duty on or about 31 May 1972.  His punishment consisted of reduction to PV2/E-2 (suspended for 90 days), a forfeiture of $25.00 pay, and 7 days of extra duty; and

	d.  on 12 September 1972, for absenting himself from his appointed place of duty without authority on or about 7 September 1972.  His punishment consisted of a forfeiture of $67.00 pay (suspended for 60 days), 14 days of extra duty, and 30 days at the Correctional Custody Facility.

10.  On 14 September 1972, the applicant pled not guilty at a Summary Court-Martial to one specification of willfully disobeying a lawful order from a superior noncommissioned officer on or about 27 July 1972.  The Court found him guilty and sentenced him to a reduction to PV1/E-1 and a forfeiture of $25.00 pay.  The sentence was adjudged on 14 September 1972 and it was approved on 21 September 1972. 

11.  On 20 October 1972, the applicant’s immediate commander notified the applicant of his intent to initiate elimination from the Army action against him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unfitness.  Specifically, the commander cited his frequent incidents of a discreditable nature with civil or military authorities. 

12.  On 26 October 1972, 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 requested consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and elected 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.

13.  On 2 November 1972, the applicant's immediate, intermediate, and senior commanders recommended approval of the applicant's elimination from the Army by reason of unfitness with the issuance of an Undesirable Discharge Certificate. 

14.  On 3 January 1973, a board of officers convened at Larson Barracks, Germany, to consider whether the applicant should be eliminated from the service with the applicant and his appointed military counsel present.  The board carefully considered the evidence before it and found the applicant was undesirable for further retention in the military service because of habits and traits of character manifested by repeated commission of petty offenses and habitual shirking, and that his rehabilitation was deemed not possible.  The board also recommended the applicant be discharged from the Army by reason of unfitness and be furnished an Undesirable Discharge Certificate. 

15.  On 22 January 1973, the convening/separation authority approved the board of officers’ findings and recommendations and directed the applicant be discharged under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness and that he be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 29 January 1973.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 2 years and 27 days of creditable active military service and he had 76 days of lost time.

16.  The applicant's records show he submitted a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 17 February 1981 and he was accordingly scheduled for a hearing.  However, on 20 April 1982, he withdrew his application.

17.  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.

18.  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.

19.  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.

2.  The applicant’s records reveal an extensive history of indiscipline and/or misconduct including nine instances of NJP, two instances of courts-martial, and a history of failure to respond to counseling.  Accordingly, his chain of command initiated separation action against him.  He and his counsel appeared in person before a board of officers.  However, there is no evidence that he received bad advice from his appointed counsel or that his counsel and the board improperly colluded.  

3.  The evidence of record shows 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 applicant's patriotism, love of his country, and desire to become a productive member of the society are noted; however, the applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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 he 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)                                         AR20090010930



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ABCMR Record of Proceedings (cont)                                         AR20090010930



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