IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090010938 


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, in effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).  

2.  The applicant states, in effect, he would like his UD upgraded to the GD he was offered.  He claims he was on leave and thought he was granted a 3 day extension and after being stopped for speeding, he was charged with being absent without leave (AWOL).  He claims he was court-martialed and fined and reduced in rank.  He states that after speaking with his commander and requesting a GD, after he received the paperwork, he realized he received a UD. 

3.  The applicant provides no documentary evidence 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 23 December 1968, and was trained in and awarded military occupational specialty (MOS) 76A (Supply Clerk).  

3.  The applicant's record shows that subsequent to completion of training, he was assigned to Fort Bragg, North Carolina, where he served until his discharge. His record shows that during his active duty tenure he earned the National Defense Service Medal and Parachutist Badge.  His record documents no acts of valor or significant achievement. 

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four separate occasions for the offenses indicated:  5 March 1970, for disobeying a lawful order; 27 March 1970, for failure to repair; 12 August 1970, for failure to repair; and 5 February 1971, for two specifications of failure to repair.  

5.  On 3 December 1970, a special court-martial (SPCM) found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from on or about         12 through on or about 22 October 1970.  The resultant sentence was a reduction to private/E-1 (PV1) and a forfeiture of $50.00 per month for 6 months. 

6.  On 4 February 1971, the unit commander notified the applicant of the intent to recommend his elimination from the service under the provisions of Army Regulation 635-212, for unfitness, and listed five separate incidents of misconduct as the reason for taking the action.  The commander further informed the applicant of his rights in connection with the separation action.  

7.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effect and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant waived consideration of his case by and personal appearance before a board of officers, and his right to representation by counsel.  He also elected not to submit statements in his own behalf.  He also acknowledged that he understood that he could expect to encounter substantial prejudice as a result of receiving either a GD or UD and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws. 


8.  On 25 February 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212, for unfitness, and directed the applicant receive a UD.  On 8 March 1971, the applicant was discharged accordingly.  

9.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant on 8 March 1971, the date of his discharge, shows he completed a total of 2 years and 11 days of creditable active military service and had accrued 65 days of time lost.  

10.  On 13 April 1977, the Army Discharge Review Board (ADRB), after careful consideration of all evidence submitted in support of his request and the applicant's entire service record, determined his discharge was proper and equitable, and it denied the applicant's petition for an upgrade of his discharge. 

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and 
(6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  The separation authority could authorize a GD or honorable discharge (HD) if warranted by the member's record of service; however, when separation for unfitness was warranted, a UD was normally considered appropriate.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a provides that an HD 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.


13.  Paragraph 3-7b of the same regulation provides that a GD 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's contention that he was offered a GD and his UD should be upgraded as a result has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record documents no acts of valor or significant achievement on the part of the applicant.  However, it does confirm an extensive disciplinary history that includes his acceptance of NJP on four separate occasions, his conviction by an SPCM, and his accrual of 69 days of time lost.  His record clearly did not support the issue of a GD or HD by the separation authority at the time of his discharge, and does not support an upgrade at this late date.  

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, the applicant's UD accurately reflects his overall record of service.  

4.  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 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)                                         AR20090010938



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ABCMR Record of Proceedings (cont)                                         AR20090010938



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