BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090020409 


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 general discharge (GD) under honorable conditions be upgraded to an honorable discharge (HD). 

2.  The applicant states he didn't deserve a GD because he did not want to be in the service, and he has turned his life around. 

3.  The applicant provides no additional documentary evidence 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 initially enlisted in the Regular Army (RA) and entered active duty on 16 June 1972.  He was assigned to Fort Benning, Georgia, for basic combat training and private/ E-2 is the highest rank/grade he attained while serving on active duty.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows during his active duty tenure he earned a Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.  

4.  On 17 November 1972, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 17 November 1972, for failure to go to his appointed place of duty at the time prescribed and breaking restriction. 

5.  On 21 February 1973, a special court-martial (SPCM) found the applicant guilty of violating Article 86 of the UCMJ by being absent without leave (AWOL) from 23 December 1972 through 24 January 1973; and Article 134 (two specifications) by breaking restriction on 19 and 25 November 1972.  The resulting sentence was a forfeiture of $160.00 pay for 3 months and reduction to private/E-1.  

6.  The record shows the applicant was notified separation action was being initiated against him by reason of apathy and a defective attitude on 9 April 1973.  He consulted with legal counsel and was advised of the basis for the contemplated separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unsuitability.  Subsequent to this counsel, he completed an election of rights in which he waived his right to have his case considered by and personal appearance before a board of officers, and elected not to submit a statement in his own behalf.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him; and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

7.  On 12 April 1973, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability and directed the applicant receive a GD.  On 16 April 1973, the applicant was discharged accordingly.  



8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he held the rank of E-1 and he had completed a total of 6 months and 8 days of creditable active military service.  It further shows he accrued 113 days of time lost due to being AWOL and in confinement at the time of discharge.

9.  There is no indication the applicant applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

11.  The version of the same regulation in effect at the time of the applicant's discharge provided the authority to separate members for unsuitability based on inaptitude, personality disorder, apathy, or homosexual tendencies in chapter 13.   Members separated under these provisions could receive either an HD or GD.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

2.  The applicant's disciplinary history includes his acceptance of NJP and accumulation of 113 days of time lost due to being in confinement and AWOL.  This clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, his record did not support the issuance of an HD by the separation authority at the time and does not support an upgrade now.

3.  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 has failed to submit evidence that would satisfy this requirement.



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)                                         AR20090020409



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020409



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1