BOARD DATE:   13 July 2010	  

		DOCKET NUMBER:  AR20090021179 


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 to an honorable discharge.

2.  The applicant states he believes that after 6 months an undesirable discharge should be changed to an honorable discharge.

3.  The applicant provides four character reference letters from associates attesting to his good-post service character and a copy of 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 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.  On 23 October 1973, the applicant enlisted in the Regular Army for 3 years in pay grade E-1.  He completed training as an equipment storage specialist.

3.  The applicant was promoted to pay grade E-2 on 23 February 1974 and he was promoted to pay grade E-3 on 1 July 1974.

4.  Nonjudicial punishments were imposed against the applicant on 17 December 1974 and on 12 February 1975 for the following:

* being absent from his place of duty on or about 12 December 1974
* willfully disobeying a lawful order from his superior noncommissioned officer on or about 11 December 1974
* treating with contempt and using disrespectful language towards his superior noncommissioned officer
* being derelict in the performance of his duties
* sleeping on duty

5.  The applicant's punishments consisted of the following:

* reduction in pay grade
* verbal reprimands
* extra duty
* forfeitures of pay

6.  On 27 March 1975, he was convicted by a special court-martial of five specifications of failure to report to duty.  He was sentenced to the following:

* confinement at hard labor
* reduction in pay grade
* forfeiture of pay

7.  On 24 June 1975, a board of officers convened to determine whether the applicant should be eliminated from the service for unfitness prior to his expiration term of service because of frequent discreditable acts.  The board found him unfit for further military service and recommended that he be discharged from the service due to frequent acts of a discreditable nature and issued an Undesirable Discharge Certificate.

8.  The appropriate authority approved the recommendation for discharge on 25 June 1975 and directed the issuance of an Undesirable Discharge Certificate.


9.  Accordingly, on 1 July 1975, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
13-5a(1), for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had completed 1 year, 5 months, and 25 days of net active service this period and he had approximately 74 days of lost time due to absences and confinement.  He was furnished an Undesirable Discharge Certificate.

10.  A review of the available records does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  The four charactor reference letters he submits are from associates attesting to his good post-service conduct.

12.  Army Regulation 635-200, in effect at the time of the applicant's separation, provided for discharge of enlisted personnel.  Chapter 13 governed separation for unfitness or unsuitability.  Separation for unfitness was appropriate for frequent incidents of a discreditable nature with civil or military authorities; sexual perversion, including but not limited to lewd and lascivious acts, indecent exposure, and indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments); and homosexual acts.  Paragraph 13-5a (1) provided specifically for discharge for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

13.  Paragraph 3-7a of Army Regulation 635-200 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.

14.  Paragraph 3-7b of Army Regulation 635-200 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's contentions regarding the passage of time have been noted.  The character reference letters he submitted attesting to his post-service conduct have been considered.  However, they are insufficiently mitigating to warrant the requested relief.

2.  His records show he had nonjudicial punishment imposed against him twice and he was convicted by a special court-martial as a result of his acts of indiscipline.  The fact that he believes after 6 months of having an undesirable discharge it should be upgraded to fully honorable is not a sufficient justification for upgrading his discharge. 

3.  Considering the nature of his offenses committed, the type of discharge he received appropriately reflects his overall record service.

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)                                         AR20090021179



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ABCMR Record of Proceedings (cont)                                         AR20090021179



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