IN THE CASE OF:	

		BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090020762 


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 upgrade of his general under honorable conditions discharge to honorable.

2.  The applicant states, in effect, he is eligible for upgrade of his discharge based on when he served.

3.  The applicant provides no documentation 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 was inducted into the Army of the United States (AUS) on 28 October 1971.  He was trained in and awarded military occupational specialty 76A (Supplyman).

3.  On 31 March 1972, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for unlawfully striking a Soldier.

4.  Special Court-Martial Order Number 18 shows he was convicted of three specifications of being absent without leave (AWOL) during the following periods:

* 26 April 1972 to 8 May 1972
* 12 May 1972 to 2 June 1972
* 7 June 1972 to 12 June 1972

5.  A memorandum, dated 7 February 1973, shows the applicant absented himself from his unit in Germany on 18 January 1973 by not returning from a 
30-day Christmas leave.  The memorandum notes the applicant indicated his leave was necessary due to personal problems at home and further notes he had difficulty coping with military duties.

6.  A temporary DA Form 20 (Enlisted Qualification Record) in the applicant's record shows he was AWOL during the period 17 January 1973 to 17 May 1973 and again during the period 5 June 1973 to 16 June 1973 in item 44 (Time Lost).

7.  On 24 May 1973, the applicant acknowledged receipt of a memorandum from his immediate commander notifying him he was being recommended for separation for unsuitability under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

8.  The applicant consulted with legal counsel and was advised of the basis for contemplated separation for unsuitability and its effects, the rights available to him, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions.  He waived his rights to consideration of his case by a board of officers, appearance before a board of officers, and representation by counsel.  He did not submit statements on his behalf.

9.  On 20 June 1973, the separation authority waived the requirements for counseling sessions and rehabilitative transfer, approved the applicant's discharge, and directed he receive a DD Form 257A (General Discharge Certificate).

10.  On 29 June 1973, he was discharged and issued DD Form 257A.

11.  The applicant's DD Form 214 shows he was separated from the Regular Army (RA) with temporary records and his affidavit.  This document contains the following erroneous entries:

* in item 4 (Department, Component, and Branch or Class), "Army - RA"
* in item 10c (Date Inducted), "NA"
* in item 13a (Character of Service), "Honorable"
* in item 17a (Source or Entry), an "X" in the box for "Enlisted (First Enlistment)"
* in items 22a(1) (Net Service This Period) and 22a(3) (Total), "02  04  01"
* in item 22b (Total Active Service), "02  04  01"

12.  The applicant was inducted on 28 October 1971 and discharged on 29 June 1973.  His record shows 172 days of lost time.  His actual total active service, computed by subtracting lost time from the total time elapsed from his induction to his discharge, was 1 year, 2 months, and 12 days.

13.  There is no indication the applicant petitioned the Army Discharge Review Board within that board's 15-year statute of limitations.

14.  On 4 April 1977, the DOD Special Discharge Review Program (SDRP) was implemented.  The SDRP stipulated that former service members who received undesirable discharges or general discharges during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP.

15.  On 29 March 1977, the Army established the Special Discharge Review Board (SDRB) to review discharges under the provisions of the SDRP.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for upgrade of his general under honorable conditions discharge to honorable.

2.  The evidence of record shows that based on his discharge date of 29 June 1973, the applicant would not have been qualified to have his discharge reviewed by the SDRB, which was required to review all less-than-fully-honorable administrative discharges issued between 4 August 1964 and 28 March 1973.

3.  The applicant's separation for unsuitability was proper and equitable and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Based on his record of indiscipline, which includes nonjudicial punishment and a conviction by special court-martial, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service insufficiently meritorious to warrant an honorable discharge.  Therefore, he is not entitled to an honorable discharge.

5.  The applicant's DD Form 214 erroneously shows his service was characterized as honorable and that his total active service was 2 years, 4 months, and 1 day.  It is reasonable to assume the applicant has presented this form to government agencies and prospective employers as official documentation of his military service.  Considering that these errors were in the applicant's favor and have been present in his record for more than 30 years, it would be inequitable to correct his DD Form 214 to show his service was characterized as general under honorable conditions and his actual total active service.

6.  The evidence shows the applicant's records contain administrative errors which do not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Case Management Support Division, St. Louis, Missouri, as outlined by the Board in paragraph 2 of the Board Determination/Recommendation section below.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the Case Management Support Division administratively correct the records of the individual by:

* deleting from item 4 of his DD Form 214 the entry "Army - RA"
* adding to item 4 of his DD Form 214 the entry "Army - AUS"
* deleting from item 10c of his DD Form 214 the entry "NA"
* adding to item 10c of his DD Form 214 the entry "28 October 1971"
* deleting the entry in item 17a of his DD Form 214



      _____________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)                                         AR20090020762



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ABCMR Record of Proceedings (cont)                                         AR20090020762



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