IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100007458 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant states that former President Jimmy Carter said his discharge is eligible for upgrade to an honorable discharge.

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 31 December 1970 for a period of 3 years.  He was awarded military occupational specialty 12B (Combat Engineer).  He was assigned to the 27th Engineer Battalion at Fort Bragg, NC, on 16 June 1971.  He immediately reenlisted on 10 August 1973 for a period of 4 years.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on:

* 11 January 1974 for failure to go at the time prescribed to his appointed place of duty
* 26 February 1974 for being absent from his appointed place of duty
* 29 March 1974 for two specifications of being absent from his appointed place of duty
* 13 June 1974 for being absent from his appointed place of duty

4.  On 27 August 1974, the applicant received a mental status evaluation.  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 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.

5.  The applicant accepted NJP under Article 15, UCMJ on:

* 4 September 1974 for violation of a general regulation by hitchhiking
* 20 September 1974 for being absent without leave from on or about 9 September 1974 to on or about 16 September 1974 and being absent from his appointed place of duty

6.  On 19 September 1974, the applicant's commander informed him that he intended to recommend him for elimination from the service for unfitness.  The commander stated the applicant 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 that his case be presented before a board of officers

7.  On 19 September 1974, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him for unfitness.

	a.  He requested:

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

	b.  He elected not to submit statements in his own behalf.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life in the event that a general discharge was issued to him.  He further acknowledged that as the result of the issuance of an undesirable discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

8.  On 19 September 1974, 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 minimum potential for further military service and was unwilling to adapt to military life.  He stated that due to the applicant's history of disregard for military discipline, his substandard appearance and performance of duty, and his failure to respond to counseling, a rehabilitative transfer would not benefit either the individual or the Army.

9.  On 4 December 1974, the applicant appeared before a board of officers with his counsel.  The board found the applicant clearly demonstrated himself to be a substandard Soldier during the specific period from January to November 1974.  The fact of his extensive misconduct was reasonably well documented and dictated every consideration for discharge from the U.S. Army.  The board found no basis for his retention in the military service in any capacity.  The board recommended that the applicant be separated from the military service with a general discharge.

10.  On 23 December 1974, the appropriate authority waived rehabilitative reassignment, directed that the applicant be discharged under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations), and directed that he be furnished a General Discharge Certificate.

11.  On 31 December 1974, the applicant was discharged under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness for frequent involvement in incidents of a discreditable nature with civil or military authorities.  He was issued a General Discharge Certificate.  He completed 1 year, 4 months, and 21 days of active service during the period under review that was characterized as under honorable conditions.  He had 10 days of lost time.

12.  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.

13.  The Department of the Army Special Discharge Review Program was based on a memorandum from former Secretary of Defense Brown and is often referred to as the "Carter Program."  Eligibility for the program was restricted to individuals discharged with either an undesirable discharge under other than honorable conditions or a general discharge between 9 August 1964 and 28 March 1973, inclusive.

14.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1) of chapter 13, then in effect, provided for the 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 would 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.

	b.  Army Regulation 635-200 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 contends that his general discharge should be upgraded because former President Jimmy Carter said his discharge is eligible for upgrade to an honorable discharge.

2.  Eligibility for the Special Discharge Review Program, often referred to as the "Carter Program," was restricted to individuals discharged between 9 August 1964 and 28 March 1973, inclusive.  Therefore, based on the applicant's discharge date of 31 December 1974, he was not eligible for this program.

3.  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.

4.  The applicant accepted NJP on six occasions.  He clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is insufficient basis to upgrade the applicant's discharge to an honorable 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)                                         AR20100007458



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ABCMR Record of Proceedings (cont)                                         AR20100007458



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