IN THE CASE OF:	  

		BOARD DATE:	    17 June 2010

		DOCKET NUMBER:  AR20090019477 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states he would like his discharge upgraded.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 15 August 1975.

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 on 1 April 1974 and held military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he held during his military service was private first class/E-3.

3.  On 13 June 1974, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for assaulting another Soldier by striking him on or about 7 June 1974.  His punishment consisted of a forfeiture of $50.00 pay and 10 days of restriction and extra duty.

4.  On 15 April 1975, he pled not guilty at a special court-martial to one specification of assaulting another Soldier by striking him with his fist in the mouth on or about 30 January 1975 and to one specification of missing unit movement through neglect on or about 28 January 1975.  The court found him guilty and sentenced him to a forfeiture of $220.00 pay per month for 6 months, a reduction to private/E-1, and confinement at hard labor for 6 months.  His sentence was approved on 21 April 1975.

5.  His records contain an extensive history of negative counseling by several members of his chain of command for various infractions including failing barracks inspections, having unsatisfactory overall performance, failing to follow instructions, displaying a negative and hostile attitude, and threatening absence without leave.

6.  On 28 July 1975, his immediate commander notified him 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 unsuitability (defective attitude).

7.  On 5 August 1975, he 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 waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and elected not to submit a statement in his own behalf.

8.  He also indicated 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 under other than honorable conditions, 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.

9.  On 5 August 1975, his immediate commander initiated elimination action against him under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsuitability.  The immediate commander remarked that discharge for unfitness was not deemed proper due to his defective attitude and failure to respond to the correctional program.  Efforts to develop him into a productive Soldier were met with negative results due to his lack of motivation and defective attitude.  He had demonstrated little desire to return to duty and received multiple counselings by various members of the chain of command.  His record and failure to react constructively to the rehabilitation program indicated that he should not be retained in the service.

10.  In August 1975, his intermediate commander concurred with the immediate commander's recommendation and recommended approval of the applicant's discharge for unsuitability.

11.  On 8 August 1975, the separation authority waived further rehabilitative requirements and approved the applicant's discharge under the provisions of paragraph 13-5 of Army Regulation 635-200 by reason of unsuitability and directed that he be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 15 August 1975.

12.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with an under honorable conditions character of service and he was issued a General Discharge Certificate.  This form also shows he completed a total of 1 year and 15 days of creditable active military service with 120 days of lost time.

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200, chapter 13, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for 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 or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general under honorable conditions or an 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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 one instance of a court-martial, one instance of nonjudicial punishment, and multiple negative counselings for various infractions.  He was provided with multiple counselings and/or opportunities for rehabilitation by various members of 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 his 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.  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)                                         AR20090019477



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ABCMR Record of Proceedings (cont)                                         AR20090019477



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