BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100007945 


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 honorable.

2.  The applicant makes no statement.

3.  The applicant provides, in support of his application, three letters of support and the last page of a Department of Veterans Affairs (VA) Form 21-0781a. 

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.  He enlisted in the Regular Army on 5 December 1974.  He successfully completed his initial training and was awarded military occupational specialty 76Y (Unit Supplyman).

3.  The applicant accepted the following nonjudicial punishments:

	a.  22 October 1975: failed to report for morning formation;

	b.  24 November 1975: wrongful possession of 1 gram, more or less, of marijuana;

	c.  27 April 1976: abandoned guard duty without authority; and

	d.  7 May 1976: failed to obey a lawful order from his unit first sergeant.

4.  On 24 May 1976, a medical examination found him to be qualified for separation with a physical profile of 1.1.1.1.1.1.  On 24 June 1976, at a mental status evaluation, the applicant's behavior was normal.  He was fully alert and oriented and displayed a mood within normal levels.  His thinking was clear, his thought content normal, and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  His probable effectiveness of further rehabilitation was determined to be good.

5.  On 23 July 1976, the applicant was convicted by special court-martial for violation of Article 92, Uniform Code of Military Justice, by failing to obey a lawful command.

6.  On 7 September 1976, the applicant’s commander notified the applicant of his intention to recommend separation from the service under the provisions of Army Regulation 635-200, Chapter 13, for misconduct. 

7.  On 9 September 1976, the applicant consulted with counsel, requested consideration of his case by a board of officers and to appear before that board, and to be represented by appointed counsel.  He elected not to make a statement in his own behalf.

8.  On 9 September 1976, the applicant's commander initiated a recommendation to separate the applicant due to misconduct.  The commander cited as reason for his action the applicant's numerous on-the-spot corrections and nonjudicial punishments.  The applicant has persisted in being continually late for duty formations, was very undependable, and displayed a hostile attitude toward his superiors.  The applicant consistently failed to respond to counseling.  His conduct and efficiency remained unsatisfactory.  Additionally, the commander felt that a rehabilitative transfer would do no good.  The chain of command concurred with the recommendation and further recommended that the applicant appear before a board of officers.

9.  On 16 September 1976, the Staff Judge Advocate (SJA) recommended that the applicant's case be referred to a board of officers for consideration.

10.  On 5 October 1976, a board of officers convened to determine whether the applicant should be discharged for misconduct prior to the expiration of his term of service.  The applicant and his counsel were present.  The board of officers found that the applicant should be discharged based on his misconduct, and recommended that he receive an (DD Form 258A) Undesirable Discharge Certificate.   

11.  On 19 October 1976, the SJA recommended that the applicant be discharged in accordance with the recommendation of the board of officers.  The SJA further stated that an Undesirable Discharge was deemed appropriate based on the applicant's lack of positive attitude and four acts of misconduct within the previous year.

12.  The appropriate authority approved the recommendation and directed that the applicant be issued a DD Form 258A.

13.  Accordingly, he was discharged with a characterization of service under other than honorable conditions on 8 November 1976.  He had completed 1 year, 11 months, and 4 days of creditable active service.

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

15.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5(a)(1) provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.



16.  Army Regulation 635-200, 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.

17.  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.

18.  The three letters of support provided by the applicant state, in essence, that he is a dedicated individual who has demonstrated a determination to find a way to get things done, no matter what obstacles he may face.  He is an eager, energetic person whose attitude is contagious among his classmates.  A senior counselor wrote that the applicant had proven himself to be dependable and professional and that he had successfully completed the substance abuse course at the Salvation Army in May 2006.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to honorable.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  Based on his poor performance of duty, the applicant's service clearly does not meet the acceptable standards for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge to either honorable or general.

5.  The applicant's post service good conduct, as implied in the three letters of support, is not sufficiently mitigating to overcome his misconduct that led to his undesirable discharge.

6.  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)                                         AR20100007945





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)