IN THE CASE OF:	

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007311 


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, his undesirable discharge be upgraded.

2.  The applicant states when he received his last court-martial, he was in the hospital with pneumonia in Switercan, Germany.

3.  The applicant provides no additional evidence in support of 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's military personnel records show he enlisted in the Regular Army on 4 June 1970 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 76A (Supplyman).
3.  On 19 February 1971, the applicant, before a special court-martial, pled guilty and was found guilty of being absent without leave (AWOL) from on or about 
8 September 1970 to on or about 22 December 1970.

4.  On 29 November 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go, at the prescribed time, to his appointed place of duty and for failure to obey a lawful order given by a noncommissioned officer (NCO).

5.  On 12 July 1972, the applicant accepted NJP under Article 15, UCMJ, for two specifications of being absent from his appointed place of duty and failure to go to his appointed place of duty.

6.  On 28 July 1972, the applicant, before a summary court-martial, pled guilty and was found guilty of two specifications of failure to go to his appointed place of duty.  

7.  On 21 September 1972, the applicant was evaluated by a major of the Medical Corps at the 912th Medical Dispensary.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 
40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

8.  On 26 October 1972, the applicant's commander informed him that he intended to recommend him for elimination from the service for unfitness.  He stated the reasons for the action were his frequent incidents of a discreditable nature with civil or military authorities.  The commander stated he had the right to:

* present his case before a board of officers
* submit statements in his own behalf
* be represented by counsel
* waive the above rights in writing
* withdraw any waiver of his rights before the date the discharge authority directs or approves his discharge and request his case be presented before a board of officers

9.  On 26 October 1972, the applicant's commander recommended him for discharge for unfitness due to his frequent incidents of a discreditable nature with civil or military authorities.  The commander stated the applicant had various assignments commensurate with his training and abilities.  However, because of his continued repeated offenses of AWOL and his lack of indicated desire to reform and because further duty will entail the creation of serious disciplinary problems, the commander requested a waiver of rehabilitative transfer.

10.  On 10 November 1972, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him for unfitness.  He requested:

* consideration of his case by a board of officers
* personal appearance before a board of officers
* representation by counsel

He submitted a statement in his own behalf; however, the statement was not available for review.

11.  The applicant also acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws, and that he may expect to encounter substantial prejudice in civilian life.

12.  On 13 November 1972, the applicant accepted NJP under Article 15, UCMJ, for being absent from his appointed place of duty.

13.  On 14 February 1973, the applicant accepted NJP under Article 15, UCMJ, for three specifications of failure to go, at the prescribed time, to his appointed place of duty.

14.  On 27 February 1973, the applicant appeared before a board of officers.  The board found the applicant to be undesirable for further retention in the military service because of habits and traits of character manifested by repeated commission of petty offenses.  The board found him to be undesirable for further retention in the military service because of habitual shirking and his rehabilitation was not deemed possible.  The board recommended the applicant be discharged from the service because of unfitness with the issuance of an Undesirable Discharge Certificate.

15.  On 28 February 1973, the applicant, before a summary court-martial, pled not guilty, but was found guilty of orally communicating to a nurse, a female, certain insulting language.


16.  On 15 March 1973, the appropriate authority waived rehabilitative reassignment, directed that the applicant be discharged under the provisions of Chapter 13 of Army Regulation 635-200, and that he be furnished an Undesirable Discharge Certificate.

17.  On 21 March 1973, the applicant was discharged under the provisions of 
Chapter 13 of Army Regulation 635-200 by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities. He was issued an Undesirable Discharge Certificate.  He had completed 
2 years, 5 months, and 12 days of active service that was characterized as under conditions other than honorable.  He had 128 days of time lost.  

18.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 27 June 1977, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

19.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1) of Chapter 13, then in effect, provided for discharge of individuals for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. This regulation further provided that an individual separated for unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may have been issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in his or her case.

20.  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 contends his discharge should be upgraded.  He contends that during his last period of AWOL he was in the hospital with pneumonia.  However, he has not provided any substantive evidence to support this contention.

2.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  He had three courts-martial and had accepted NJP on four occasions.  This clearly shows his service to be unsatisfactory.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement. 

4.  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 that requirement.

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge.

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)                                         AR20100007311





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (