IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100000459 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states he felt he was treated unfairly by his unit.  He states he was never assigned in his military occupational specialty and was not given the opportunity to perform the job he was trained to do.  He also states he was demoted when he reported to his unit and was persuaded not to appeal his Article 15.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty) and a memorandum, dated 29 May 1979, from Army Discharge Review Board (ADRB).  The applicant states he provided two letters that were submitted to the ADRB, but those letters were not attached to 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 enlisted in the Regular Army for a period of 3 years on 12 August 1974.  Records show the applicant was 18 years of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 31B (Field Artillery Digital Automation Computer).  The highest grade the applicant attained was private/pay grade E-2.

3.  The applicant received five nonjudicial punishments (NJP) under Article 15, Uniform Code of Military Justice, between 27 May 1975 and 13 November 1975 for disobeying a superior noncommissioned officer (four specifications), failing to go to his appointed place of duty (two specifications), and being absent without leave for 2 days.  The punishments for these NJP's consisted of reduction to pay grade E-1, forfeitures of pay, restrictions, and extra duties.  At one time, the company commander suspended the punishment of reduction to pay grade E-1 for 60 days to give the applicant a second chance.  The applicant was transferred to another section (medical section) because the applicant informed the company commander that he would like to be a medic.  The company commander advised the applicant that this was a rehabilitative transfer.  The applicant was transferred to another section because of lack of interest and poor performance in the medical section.  The applicant was informed that this was his last chance at rehabilitation.

4.  A 2nd endorsement, dated 14 January 1976, subject:  Bar to Reenlistment, to a DA Form 4126-R (Bar to Reenlistment Certificate), dated 12 December 1975, Headquarters, 1st Battalion, 5th Field Artillery, Fort Riley, Kansas, shows the division commander approved a bar to reenlistment against the applicant.  The reasons for the action were that the applicant failed to demonstrate any qualities which indicate that he is the type of Soldier the Army needs to be retained.  The applicant received several Article 15's for disobeying lawful orders and failing to go to his appointed place of duty on numerous occasions.

5.  On 9 December 1975, the company commander notified the applicant that separation action was being initiated against him under the provisions of Army Regulation 635-200, chapter 13, for unfitness.  The company commander stated that the reasons for his recommendation for elimination of the applicant were the applicant's frequent acts of a discreditable nature in that he received four Article 15's.  The applicant's behavior indicated an established pattern for shirking, being absent without leave, failing to go to his appointed place of duty, and disobeying orders.  The company commander stated that the applicant needs constant supervision to accomplish even the simplest task.  He also stated the applicant's appearance and duty performance are both well below acceptable standards.  The applicant will obey only those orders with which he agrees and seems to believe that he can ignore any orders he so chooses.  The company commander transferred the applicant to three different section chiefs to give him the opportunity to perform his duty as a Soldier.  The company commander further stated the applicant has no real future in the Army and recommended that rehabilitation be waived.

6.  On 17 December 1975, the applicant acknowledged with his signature that he had been advised by consulting counsel of the basis for the contemplated action to separate him from the Army for unfitness.  The applicant requested to have his case be considered by and a personal appearance before a board of officers.  The applicant also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him.  The applicant's legal counsel also affixed his signature to the document.

7.  On 2 January 1976, the battalion commander recommended to the approval authority that the applicant's separation from the service under the provisions of Army Regulation 635-200, chapter 13, for unfitness be approved and further rehabilitative efforts be waived 

8.  On 6 January 1976, the brigade commander also recommended approval of the separation action and that rehabilitative efforts be waived.

9.  On 16 January 1976, the separation authority waived the counseling and rehabilitation requirements and forwarded the applicant's separation action to a board of officers to determine whether the applicant should be separated for unsuitability.

10.  On 5 February 1976, a board of officers was convened to determine whether the applicant should be discharged because of unfitness (unsatisfactory performance) before the expiration of his term of service. The applicant personally appeared before the board of officers and gave an unsworn statement.  After careful consideration of the evidence presented and brought before the board, the board recommended that the applicant be discharged from the military service for unfitness for reasons of frequent incidents of a discreditable nature.  The board also recommended that the applicant be issued an Undesirable Discharge Certificate. 

11.  On 4 March 1976, the separation authority approved the discharge under the provisions Army Regulation 635-200, paragraph 13-5a, and directed the applicant be issued an Undesirable Discharge Certificate.

12.  The applicant's DD Form 214 shows he entered active duty on 12 August 1974 and was discharged on 17 March 1976 with an under other than honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 13, based on unfitness.  At the time he had completed 1 year, 7 months, and 4 days of net active service.  The DD Form 214 shows he had 2 days of lost time from 16 June 1975 through 17 June 1975.

13.  The applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.  On 29 May 1979, the ADRB denied the applicant's request for an upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 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.

16.  Army Regulation 625-200, 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 contends that his under other than honorable conditions discharge should be upgraded to a general discharge because he feels he was treated unfairly by his unit.  He states that he was never assigned in his military occupational specialty and was not given the opportunity to perform the job he was trained to do.  He also states that he was demoted when he reported to his unit and was persuaded not to appeal his Article 15.
 
2.  The applicant's contention that he was treated unfairly and was never given the opportunity to perform the job he was trained to do is not sufficiently mitigating to warrant relief.  The company commander transferred the applicant to three different section chiefs to give him the opportunity to perform his duty as a U.S. Army Soldier.  Due to the applicant's constant lack of ability to perform his assigned tasks and obey orders, he was given his first Article 15 within the first 45 days of arrival to his new unit for failing to go to his appointed place of duty.  The company commander suspended the reduction in grade for 60 days to give the applicant a second chance.  The applicant again failed to perform his duties as required by a Soldier in that he went absent without leave for 2 days.  He subsequently received an Article 15 and was reduced in rank.  The applicant was also transferred to several other sections for rehabilitation purposes.  The applicant's contention that he was treated unfairly is unwarranted because he was given the opportunity to perform in three different sections.

3.  The applicant's administrative discharge was accomplished in compliance with applicable regulations and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  The applicant's record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  It was not sufficiently meritorious to warrant a general discharge.  Therefore, the applicant is not entitled to a general discharge.

5.  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.  Therefore, in view of all 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.



      _________________________
                 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)                                         AR20100000459



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)