IN THE CASE OF:	  

		BOARD DATE:	  1 June 2010

		DOCKET NUMBER:  AR20090017871 


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 an upgrade of his undesirable discharge.

2.  The applicant states that he was told during his separation processing his discharge would be upgraded to an honorable discharge within 60 days and he would only lose "money type" benefits.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States 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’s record shows he enlisted in the Regular Army on 
3 June 1971.
3.  The applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:

* February 1973 – absent without leave (AWOL) from 1 February to             7 February 1973
* April 1973 – AWOL from 23 April to 25 April 1973
* May 1973 – failure to report to his appointed place of duty
* June 1973 – AWOL from 22 June to 26 June 1973 and from 27 June to 
     28 June 1973

4.  On 13 August 1973 the applicant was convicted by a special court-martial of one specification of being AWOL from 19 July to 8 August 1973.  

5.  On 22 September 1973, the applicant’s unit commander notified him that he was initiating action to separate him under the provisions of Army Regulation
635-200, paragraph 13, for unsatisfactory performance in his duties and for having numerous Article 15's and negative counseling statements.

6.  The applicant's administrative separation recommendation contains a resume of the following discreditable acts not punished under the UCMJ:

* 6 September 1973 – cut in chow line
* 8 September 1973 – talked back to platoon guide
* 8 September 1973 – failed barracks inspection
* 9 September 1973 – smoked in formation
* 13 September 1973 – failed to shave and failed barracks inspection

7.  A Standard Form (SF) 88 (Report of Medical Examination), dated 3 October 1973, and an undated DA Form 3822-R (Mental Status Evaluation), cleared the applicant for separation.

8.  On 22 September 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated action and the rights available to him.  The applicant waived his right and did not submit a statement in his own behalf.  He acknowledged that he understood that he would have less than 6 years of total active and/or reserve military service at the time of separation; therefore, he was not entitled to have his case heard by a board of officers.  He also understood that he may expect to encounter substantial prejudice in civilian life if a less than honorable discharge was issued to him.

9.  On 26 September 1973, the appropriate authority approved the separation recommendation, waived further rehabilitative efforts, and directed the issuance of an undesirable discharge.  The evidence does include a properly-constituted DD Form 214 that provides the following information:

* Reason and Authority:  Army Regulation 635-200 (Personnel Separations)
* Separation Program Number (SPN):  28B (frequent involvement of a
discreditable nature with civil or military authorities) 
* Effective Date:  5 October 1973
* Days Lost:  84 days 
* Net Active Service: 2 years, 1 month, and 9 days 
* Type of Certificate Issued:  DD Form 258A (Undesirable Discharge Certificate)

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

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  This regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

12.  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.  Contrary to the applicant's contentions, the U.S. Army has never had a policy where a discharge was automatically upgraded after 60 days.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  A review of the applicant’s record of service shows that he received one special court-martial and four Article 15's during his first two years of his enlistment commitment.  His overall record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant a fully honorable discharge.

3.  The evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.

4.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

5.  In view of the above, there is no basis for granting the applicant relief.

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)                                         AR20090017871



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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