BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090021818 


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, in effect, that his general discharge be upgraded.

2.  The applicant states he is sick and has been in and out of the Department of Veterans Affairs medical center.

3.  The applicant provides no additional documentary evidence in support of this 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 military records show he enlisted in the Regular Army on 28 August 1973.  He completed initial entry training, was awarded the military occupational specialty of radio teletype operator, and was promoted to pay grade E-3.

3.  Records show the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on five occasions during the period 16 January 1974 to 11 June 1974 for failing to go at the time prescribed to his appointed place of duty on eight occasions, wrongful possession of marijuana, and being absent without leave on two occasions.

4.  On 14 June 1974, the applicant's commander informed him that he was recommending his separation from the military service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsuitability.  His commander indicated he had been counseled on numerous occasions for failing to go to his appointed place of duty, possession of marijuana, unproductive attitude, and failure to repair.  He further stated that despite advice from his seniors to reorder his priorities and take his service commitment more seriously, the applicant continued to display an attitude of immaturity and indifference.

5.  On 14 June 1974, the applicant acknowledged he had been advised by counsel of the basis for the contemplated action to separate him for unsuitability under the provisions of chapter 13, Army Regulation 635-200.  He acknowledged that he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He did not elect to submit a statement in his own behalf.

6.  On 25 June 1974, the separation authority approved the recommendation for separation under the provisions of chapter 13, Army Regulation 635-200, for unsuitability.  He directed the applicant be discharged from the service and furnished a general discharge.

7.  On 5 July 1974, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability with a general discharge.  The DD Form 214 (Report of Separation from Active Duty) issued to him shows he completed a total of 10 months and 8 days of active duty service.

8.  There is no indication 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.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unsuitable for further military service.  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.

10.  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's records indicate he was counseled in regard to his repeated failure to go to his appointed place of duty, possession of marijuana, unproductive attitude, and failure to repair.  The applicant's records show he accepted nonjudicial punishment on five occasions.  Such conduct would certainly warrant an administrative separation from the Army.

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 an honorable discharge.

3.  The ABCMR does not grant requests for upgrades of discharges solely for the purpose of making the applicant eligible for veteran's benefits.  Every case is individually decided based upon its merits.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090021818



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ABCMR Record of Proceedings (cont)                                         AR20090021818



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