IN THE CASE OF:	

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090017481 


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 his undesirable discharge be upgraded.

2.  The applicant states:

* the Red Cross, Police Department, and Welfare Office notified his Commanding Officer that his child had been abandoned while he was in Germany
* his request for emergency leave was denied
* he was angry and he let his first sergeant know
* he missed a formation

 3.  The applicant provides a letter, dated 15 September 2009, from the Department of Veterans Affairs (DVA) and a copy of his DD Form 214 (Report of Transfer or Discharge) 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 17 March 1971 for a period of 
2 years.  He served as a light weapons infantryman in Vietnam from 17 August 1971 to 1 May 1972 and was honorably discharged on 17 December 1972 for immediate reenlistment.  He reenlisted on 18 December 1972 for a period of 
6 years.     

3.  On 27 December 1973, nonjudicial punishment was imposed against the applicant for resisting apprehension.  His punishment consisted of a forfeiture of pay.   

4.  The applicant arrived in Germany on 12 March 1974.

5.  On 17 May 1974, nonjudicial punishment was imposed against the applicant for absenting himself from his place of duty for 2 hours.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.   

6.  On 8 July 1974, nonjudicial punishment was imposed against the applicant for being incapacitated for duty as a result of previous indulgence in intoxicating liquor.  His punishment consisted of a reduction to E-1 and a forfeiture of pay.   

7.  On 15 August 1974, a bar to reenlistment was imposed against the applicant.

8.  On 3 December 1974, nonjudicial punishment was imposed against the applicant for absenting himself from his place of duty (morning formation).  His punishment consisted of a reduction to E-3, restriction, and extra duty.      

9.  On 18 December 1974, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. 

10.  On 18 December 1974, the applicant consulted with counsel and waived consideration of his case by a board of officers and representation by counsel.  He acknowledged he might receive an undesirable discharge and as the result of issuance of an undesirable discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life.  He also elected not to submit a statement on his behalf.     


11.  On 9 January 1975, the separation authority approved the recommendation for separation and directed the issuance of an undesirable discharge.
 
12.  The applicant was transferred to the United States on 18 January 1975. 

13.  Accordingly, the applicant was discharged on 20 January 1975 with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served a total of 3 years, 10 months, and 4 days of total active service.  

14.  In support of his claim, the applicant provided a letter from the DVA which states he is currently rated at 40 percent for service connected disability or disabilities and 70 percent for nonservice connected pension.

15.  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.     

16.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  

17.  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.  

18.  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’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.  

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

3.  The applicant's record of service during his last enlistment included a bar to reenlistment and four nonjudicial punishments, including one before he arrived in Germany.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

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)                                         AR20090017481





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ABCMR Record of Proceedings (cont)                                         AR20090017481



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