BOARD DATE:	  2 February 2010 

		DOCKET NUMBER:  AR20090015132 


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, an upgrade of his discharge.

2.  The applicant states "the discharge he was sent said under other than honorable conditions when it should have said undesirable."  (An undesirable discharge is the same as an under other than honorable conditions discharge.)  

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 for a period of 3 years on 28 December 1973.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 45K (Tank Turret Repairman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3. 

3.  The applicant's records reveal a 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 30 April 1974, unlawfully striking another Soldier in the face with his fist on or about 19 April 1974 and unlawfully striking another Soldier on the face with his fists on or about 19 April 1974.  His punishment consisted of a forfeiture of $163.00 pay per month for 2 months, 45 days of extra duty, and 45 days of restriction; 

	b.  on 7 November 1974, failing to go at the time prescribed to his appointed place of duty on or about 4 November 1974.  His punishment consisted of a reduction to private (PV2)/E-2 (suspended for 30 days), a forfeiture of $85.00 pay for 1 month, and 14 days of extra duty; 

	c.  on 11 February 1975, for failing to go at the time prescribed to his appointed place of duty on or about 10 February 1975.  His punishment consisted of a reduction to PV2/E-2, a forfeiture of $89.00 pay for 1 month, and 14 days of extra duty; and

	d.  on 19 February 1975, for being absent without leave (AWOL) during the period on or about 15 February 1975 through on or about 18 February 1975.  His punishment consisted of 30 days of correctional custody.

4.  On 9 May 1975, the applicant pled guilty at a Special Court-Martial to two specifications of being AWOL during the periods on or about 10 March 1975 through on or about 19 March 1975 and on or about 27 March 1975 through on or about 29 March 1975 and one specification of breaching the restraint imposed by leaving the correctional custody facility without authority on or about 10 March 1975.  The Court sentenced him to a reduction to private (PVT)/E-1 and confinement at hard labor for 2 months.  The sentence was adjudged on 9 May 1975 and was approved on 4 June 1975.

5.  On 19 December 1975, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for being found asleep while on duty as a sentinel on or about 4 December 1975.  His punishment consisted of a reduction to PVT/E-1, a forfeiture of $50.00 pay for 1 month, and 14 days of extra duty (7 days suspended for 30 days).

6.  On 23 December 1975, the applicant’s immediate commander notified the applicant of his intent to initiate elimination from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of unfitness.  Specifically, the immediate commander cited his frequent incidents of a discreditable nature with civil or military authorities. 

7.  On 30 December 1975, 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 unsuitability under the provisions of Army Regulation 635-200.  He further waived consideration of his case by a board of officers, personal appearance before a board of officers, and elected not to submit a statement.  The applicant further indicated that he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions 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.

8.  On 5 January 1976, the applicant’s immediate commander initiated elimination action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness.  The immediate commander remarked that the applicant had been rehabilitativly transferred but his actions showed he did not have the capability to become an effective Soldier as evidenced by his NJP for being found asleep on duty and various incidents involving good order and discipline. 

9.  On 13 January 1976, the applicant's intermediate commander recommended approval of the applicant's discharge and indicated that he (the intermediate commander) was convinced that the applicant would continue to commit offenses and generally render unsatisfactory performance. 

10.  On an unknown date, the applicant's senior commander also recommended approval of the applicant's discharge.

11.  On 9 February 1976, the separation authority approved the recommendation to discharge the applicant and directed he be discharged under the provisions of paragraph 13-5 of Army Regulation 635-200 by reason of unfitness and that he be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 4 March 1976.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with a character of service as under other than honorable conditions and was issued an Undesirable Discharge Certificate.  This form further shows he completed 1 year, 10 months, and 4 days of creditable active military service and had 124 days of lost time.

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

13.  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.

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.

13.  AR 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 a history of misconduct which includes five instances of NJP, one court-martial, and multiple instances of AWOL.  He was provided with multiple counseling and/or opportunities for rehabilitation by his chain of command but failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.  

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 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, there is insufficient evidence to grant the applicant's requested relief in this 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)                                         AR20090015132



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ABCMR Record of Proceedings (cont)                                         AR20090015132



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