IN THE CASE OF:	

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090014608 


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 general discharge be upgraded to honorable.

2.  The applicant states that he has never been court-martialed.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); a copy of his DD Form 214 (Report of Transfer or Discharge); and a letter, dated 3 August 2009, from the National Personnel Records Center, St. Louis, Missouri 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 3 August 1970 for a period of 
3 years.  He successfully completed basic combat training, advanced individual training, and airborne training in military occupational specialty 11B (light weapons infantryman).  

3.  On 13 April 1971, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 7 March 1971 to 30 March 1971.  His punishment consisted of a reduction to E-1 (suspended) and a forfeiture of pay.  

4.  On 19 August 1971, nonjudicial punishment was imposed against the applicant for absenting himself from his appointed place of duty on 15 August 1971.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.  

5.  On 26 June 1972, the applicant was counseled for failing to go at the time prescribed to his appointed place of duty (company formation) on 21 June 1972.  

6.  On 26 June 1972, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212 for unsuitability due to apathy, defective attitudes, and inability to expend effort constructively.  

7.  On 27 June 1972, nonjudicial punishment was imposed against the applicant for being disrespectful to a superior noncommissioned officer.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.  

8.  On 6 July 1972, the applicant underwent a separation physical examination and was found qualified for separation.  

9.  On 11 July 1972, the applicant consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement on his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  

10.  On 12 July 1972, the applicant underwent a mental status evaluation and was found mentally responsible.

11.  On 14 July 1972, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

12.  Accordingly, the applicant was discharged on 29 July 1972 with a general discharge under the provisions of Army Regulation 635-212 for unsuitability (apathy, defective attitudes, and inability to expend effort constructively).  He had served a total of 1 year, 11 months, and 27 days of creditable service.

13.  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.    

14.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general or honorable discharge was considered appropriate.  

15.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record of service included three nonjudicial punishments.  As a result, his record of service 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 honorable.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  
 
3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 





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)                                         AR20090014608





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ABCMR Record of Proceedings (cont)                                         AR20090014608



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