BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100007521 


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 an honorable discharge.  He also requests his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) show his rank/grade as sergeant (SGT)/E-5 and 6 months of back pay for serving as a SGT/E-5.

2.  The applicant states, in effect, that his commander mistreated him.  He also states that an Officer of the Day in the rank of major promoted him to SGT/E-5.

3.  The applicant provides a copy of his DD Form 214.

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 records show that he enlisted in the Regular Army on 6 June 1968 for 3 years.  He did not complete initial entry training and he was not awarded a military occupational specialty.  The highest rank/grade he held during his service was private (PV1)/E-1.

3.  A commander's statement contained in his records, dated 14 November 1968, indicates the applicant received non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without proper authority during the period from on or about 5 July to 17 July 1968.

4.  Records indicate that he was convicted by a special court-martial on 29 October 1968 for being absent without proper authority during the periods from on or about 2 August to on or about 10 October 1968 and on or about 14 October to on or about 20 October 1968.

5.  On 8 November 1968, he was evaluated at the Mental Hygiene Consultation Service at Fort Gordon, GA.  The evaluation revealed no evidence of any mental condition which would warrant consideration for treatment, hospitalization or other disposition via medical channels.  The findings of the evaluation were:  personality, inadequate, chronic, moderate, manifested by inability to adjust to military environment; poor impulse control with frequent period of absence with without authority; disrespect for military rules and regulations with failure to profit from military discipline.  Predispostion:  severe.  Stress:  undetermined.  Impairment for further military duty: none.  Line of Duty: no, existed prior to service.   It was strongly recommended the applicant be administratively separated.

6.  His records contain three statements from leaders indicating he was absent without authority on numerous occasions and he was unable and unwilling to adjust to military life.

7.  On 14 November 1968, he acknowledged receipt of written notification of the proposed action to discharge him under the provisions of Army Regulation
635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) due to unfitness.

8.  On 15 November 1968, he was advised by counsel of the basis for the contemplated separation.  He acknowledged that he understood he may encounter substantial prejudice in civilian life in the event that a general discharge under honorable conditions was issued to him.  He further acknowledged that he understood if an undesirable discharge under conditions other than honorable was issued to him that he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  On 26 November 1968, the separation authority approved the applicant's elimination from the service.

10.  On 9 December 1968, he was given an undesirable discharge with service characterized as under other than honorable conditions under the provisions of Army Regulation 635-212.  His DD Form 214 shows he completed a total of 3 months of active military service.  Item 26a (Non-Pay Periods Time Lost) shows 95 days lost under Title 10, U.S. Code, section 972 from 5 July through
16 July 1968, 2 August through 9 October 1968, and 14 October through
19 October 1968.

11.  There are no orders or other evidence in the applicant's records to indicate he was ever promoted to pay grade E-5.

12. There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes that promotions to pay grade E-5 will be stated on promotion orders issued by the promotion authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged under the provisions of Army Regulation 
635-212 for unfitness.  His records show that he had a total of 95 days of lost time.  He was convicted by court-martial for being absent without proper authority on two occasions.  Evidence also indicates he received NJP for being absent without proper authority on an earlier occasion.

2.  Based on the applicant's misconduct, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  The applicant contends an Officer of the Day promoted him to pay grade E-5 because he had assumed the responsibilities of a position normally requiring that grade and the "pinning on of the rank."  However, promotions to pay grade E-5 require the issuance of orders.  There are no orders or other evidence in the applicant's records and he did not provide any orders showing he was ever promoted to the pay grade of E-5.  As such, there is no evidentiary basis for changing the rank on his DD Form 214 to show pay grade E-5 and, therefore, no basis for back pay.

5.  In view 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.



      _________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)                                         AR20100007521



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)