IN THE CASE OF:	  

		BOARD DATE:	    6 April 2010

		DOCKET NUMBER:  AR20090014226 


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 to an honorable discharge. 

2.  The applicant states that at the time of his discharge he was 18 years of age, scared, immature, and of very little character. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a photocopied sheet of cards indicating he is a certified technician for refrigerant handling, a licensed mechanical contractor, and a union member.  He also provides a certificate for completion of the TracPipe training program and three letters of support.

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 military records show he enlisted in the Regular Army on 28 November 1969 at the age of 17 with parental consent.  He was awarded military occupational specialty (MOS) 76P (stock control and accounting specialist).  The highest rank/grade he held during his tenure of service was private (PVT)/E-2.  The applicant's records do not show any significant acts of achievement or valor during his military service.

3.  Summary Court-Martial Order Number 47, dated 12 September 1970, shows the applicant was convicted of being absent without leave (AWOL) for 4 days and for failing to obey a lawful order.  

4.  Special Court Martial Order Number 10, dated 18 January 1971, shows he was convicted of being AWOL 27 days.  

5.  The applicant's records show that on 1 April 1971 he was charged with being AWOL from 29 January to 24 March 1971 (54 days) and from 9 April to 14 April 1971 (5 days).

6.  The applicant's complete discharge packet is not contained in his records.  However, on 3 June 1971, the applicant was discharged under the provisions of Army Regulation 635-212 (Personnel Separations), for unfitness, and issued a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 the applicant was issued shows he completed a total of 1 year, 1 month, and 4 days of active military service with 152 days of lost time.  He was assigned a Separation Program Number (SPN) of 28B.

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-212 established policy and provides procedures and guidance for eliminating enlisted personnel who were found to be unfit or unsuitable for further military service.  Action would be taken to separate an individual for unfitness when it was clearly established that despite attempts to rehabilitate or develop the individual as a satisfactory Soldier further effort was unlikely to succeed, rehabilitation was impracticable, or the individual was not amenable to rehabilitation measures.  

9.  Army Regulation 635-5 (Separation Documents), in effect at the time, shows SPN 28B corresponds to unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel:

   a.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   b.  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 was discharged under the provisions of Army Regulation 
635-212, for unfitness.

2.  The applicant's DD Form 214 shows he had 152 days of lost time.  He was convicted of being AWOL twice by court martial.  He was also charged with being AWOL on two additional occasions. 

3.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  In the absence of evidence to the contrary, 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.

5.  The documents the applicant submitted are not sufficiently mitigating to warrant upgrading a properly-issued discharge.

6.  Records show the applicant was 18 years of age at the time of his offenses.  There is no evidence indicating the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090014226



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ABCMR Record of Proceedings (cont)                                         AR20090014226



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