IN THE CASE OF:	  
	
		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100001061 


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 undesirable discharge be upgraded to an honorable or a general discharge.

2.  The applicant states he was discharged because he could not get along with an officer and that his service was honorable up until the last few months. 

3.  The applicant did not provide any additional documentary 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.  The applicant's records show he was inducted in the Army of the United States on 15 September 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13A (Field Artillery Basic). 

3.  The applicant's records reveal a history of acceptance of nonjudicial punishment (NJP) as follows:

	a.  on 12 January 1971, for absenting himself from his appointed place of duty on or about 4 January 1971; and

	b.  on 10 May 1971, for failing to obey a lawful order from his commanding officer by leaving his rifle and bayonet unattended.

4.  Further, the records show he was reported absent without leave (AWOL) during the following periods:

* 28 November 1971 through 15 February 1972, dropped from the rolls (DFR) on 28 December 1971
* 6 April 1972 through 25 April 1972, surrendered to military control on 
26 April 1972

5.  On 10 March 1972, he pled guilty at a summary court-martial to one specification of being AWOL on or about 28 November 1971 to on or about 
15 February 1972.  The Court sentenced him to forfeit $100.00 pay for one month, reduction to private (E-2), and 45 days restriction.  The sentence was adjudged, approved, and ordered executed on 10 March 1972.

6.  The specific facts and circumstances surrounding his discharge are not available for review with this case.  The applicant was discharged with temporary records on 30 May 1972.  The DD Form 214 he was issued confirms he was discharged with an undesirable discharge, characterized as under conditions other than honorable, under the provisions of Army Regulation 635-212, for unfitness.  He completed a total of 1 year, 5 months, and 23 days of creditable active military service and had 84 days of lost time.

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  Army Regulation 635-212, in effect at the time, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

9.  Army Regulation 635-200 (Personnel Separations), 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

10.  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.  The applicant's request that his undesirable discharge should be upgraded was carefully considered; however, there is insufficient evidence to grant relief.

2.  The record is void of the specific facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 30 May 1972 under the provisions of Army Regulation 635-212 by reason of unfitness with an under conditions other than honorable discharge.

3.  His records reveal a disciplinary history which includes two instances of being AWOL, one summary court-martial conviction, and two instances of nonjudicial punishment.  

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  

5.  Absent evidence to the contrary, it is presumed all requirements of law and regulation were met and his rights were presumably fully protected throughout the separation process.  It is also presumed his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.
6.  In view of the above, the applicant's request should be denied.

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)                                         AR20100001061



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)