IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100000533 


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 undesirable discharge to a general discharge.

2.  The applicant states he never appeared before a separation board, that his discharge was determined without any representation on his behalf, and he did not receive so much as a trial.  He states he was never brought up on any “incriminating” charges, he never spent time in the stockade, and feels his type of discharge was unjust and unlawful. 

3.  The applicant provides no additional evidence 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.  Records available to the Board indicate the applicant enlisted in the Regular Army on 31 January 1973.  He successfully completed basic combat training and in April 1973 he was assigned to Fort Gordon, GA for training as a Radio Telephone Operator.

3.  Between May and July 1973, the applicant received five nonjudicial punishment actions (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for numerous instances of failing to go at the time prescribed to his appointed place of duty.

4.  On 16 July 1973 the applicant’s unit commander initiated a local bar to reenlistment action against the applicant.  The commander noted the applicant's record of habitual misconduct.  The unit commander also indicated he initiated action to separate the applicant from active duty under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unfitness.

5.  The local bar to reenlistment was approved on 2 August 1973.

6.  Documents associated with the applicant’s administrative separation processing were not in the available records.  However, on 31 August 1973, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1), with a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate.   His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) notes he had 7 months of total active service.

7.  In 1974 the Army Discharge Review Board denied the applicant’s petition to upgrade the character of his 1973 discharge.

8.  References:

   a.  Army Regulation 635-200, chapter 13, applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5a(1) provided for the separation of individuals for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  At the time an undesirable discharge was normally considered appropriate.  

   b.  Army Regulation 635-200, in effect at the time, also provided that the unit commander may afford the individual concerned the opportunity to waive his right of a hearing before a board of officers.  In such cases the commander would advise the individual in writing of:

* the basis for the proposed discharge action
* his right to consult with counsel
* his right to present his case before a board of officers
* his right to submit statements in his own behalf
* his right to be represented at any hearing by appointed counsel
* his right to waive his rights in writing

   c.  Army Regulation 635-200, 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  Although the applicant’s separation action is not available for review, the applicant would have been involved in the separation action and he would have been advised of his various rights, including the right to present his case before a board of officers or to waive that right.  In the absence of evidence to the contrary regularity is presumed and the applicant has provided no evidence indicating his administrative separation was not accomplished in compliance with applicable regulatory guidance or that there were procedural errors that would have jeopardized his rights.

3.  His argument that he never spent time in the stockade or he was never brought up on any “incriminating” charges is not sufficiently compelling to upgrade the character of his discharge.  However, the applicant's record of misconduct was sufficient to warrant his administrative separation.

4.  The applicant’s successful completion of basic combat training is evidence he was capable of honorable service.  However, his receipt of five Article 15's for failing to go at the time prescribed to his appointed place of duty diminished the character of his service and warranted his undesirable discharge.

5.  In order to justify correction of a military record the applicant must 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.

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)                                         AR20100000533



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ABCMR Record of Proceedings (cont)                                         AR20100000533



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