BOARD DATE: 3 June 2010
DOCKET NUMBER: AR20090020829
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 that his under other than honorable conditions discharge be upgraded.
2. The applicant states he believes his record should reflect a different discharge. He states that he was reassigned to a Retraining Brigade, was there about 3 months, was told that he was retrained, and then was told he was being discharged. He states he was never told what type of discharge he was being issued at the time.
3. The applicant provides his DD Form 214 (Report of Separation from Active Duty).
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 applicants 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 applicants 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 military records show that he enlisted in the Regular Army on 17 November 1972. He did not complete advanced individual training and was not awarded a military occupational specialty. The highest rank/grade he held was private/E-1.
3. Summary Court-Martial Order Number 11, dated 4 May 1973, shows the applicant was convicted of being absent without leave (AWOL) for 29 days.
4. Special Court Martial Order Number 9, dated 28 January 1974, shows he was convicted of being AWOL for 60 days.
5. The applicant's complete discharge packet is not contained in his records. However, on 6 March 1974, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), for unfitness, and issued a DD Form 258A (Undesirable Discharge Certificate). The DD Form 214 the applicant was issued shows he completed a total of 11 months and 14 days of active military service with 126 days of lost time. He was assigned a Separation Program Number (SPN) of 28B.
6. Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel. At the time, it established policy and provides procedures and guidance for eliminating enlisted personnel who were found to be unfit or unsuitable for further military service. Action would be taken to separate an individual for unfitness when it was clearly established that despite attempts to rehabilitate or develop the individual as a satisfactory Soldier further effort was unlikely to succeed, rehabilitation was impracticable, or the individual was not amenable to rehabilitation measures.
7. Army Regulation 635-5 (Separation Documents), in effect at the time, shows SPN 28B corresponds to unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities.
8. 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.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 was convicted of being AWOL twice by court-martial and was discharged for unfitness. His DD Form 214 shows he had 126 days of lost time.
2. Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, he is not entitled to a general discharge.
3. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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.
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