IN THE CASE OF:	  

		BOARD DATE:	  31 August 2010

		DOCKET NUMBER:  AR20100008956


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 (UD) to a general discharge (GD).

2.  The applicant states:

* he had 1 year and 22 days of honorable service and 128 days of lost time
* he was told he had to wait 3 years before obtaining an upgrade

3.  The applicant provides:

* a handwritten self-authored statement
* a copy of his DD Form 214 (Report of Separation from Active Duty)

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 enlisted in the Regular Army on 11 September 1973.  He was trained as a personnel records specialist in military occupational specialty (MOS) 75D.

3.  Even before completing his initial entry training (IET), the applicant started going absent without leave (AWOL).  His periods of AWOL are as follows:

* 19740109 - 19740116 for 	8 days
* 19740916 - 19741015 for 30 days
* 19741101 - 19741215 for 45 days
* 19741216 - 19741217 for _2 days
   Total:	    85 days

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 17 January 1974 for the first period of AWOL shown above.  His punishment included forfeiture of $75.00 pay per month for 1 month and restriction and extra duty for 7 days.

5.  The applicant's records contain one other NJP for failing to go at the time prescribed to his appointed place of duty, to wit; Guard Duty on 26 May 1974, for which he received 7 days of extra duty.

6.  Special court-martial charges were preferred against the applicant for violation of Article 86, UCMJ, for being:

* AWOL from on or about 16 September 1974 to on or about 16 October 1974
* AWOL from on or about 1 November 1974 to on or about 16 December 1974
* AWOL from on or about 16 December 1974 to on or about 18 December 1974

Contrary to his plea of not guilty, the applicant was found guilty on 27 December 1974 and he was sentenced to reduction to private (PV1)/E-1, forfeiture of $100.00 pay per month for 3 months, and confinement for 45 days.  He was 


transferred to the U.S. Army Retraining Brigade (USARB), Fort Riley, KS for service of his sentence to confinement from 18 December 1974 to 30 January 1975.

7.  When he completed his sentence to confinement the staff at the USARB determined the applicant was not properly motivated to be a good Soldier and he was otherwise unfit.  The applicant's separation packet is not contained in the available records; however, his records contain a duly-constituted DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 13-5a(1) with a separation program designator (SPD) code of "JBL."

8.  On 10 February 1975, the applicant was discharged with a UD.  He had 1 year and 22 days of creditable service and 128 days of time lost due to AWOL and confinement.

9.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within board's 15-year statute of limitations.

10.  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 provided for 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, a UD was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7b, states that a general discharge (GD) 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.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of 
each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded to a GD because he had 1 year and 22 days of honorable service

2.  The applicant was a substandard Soldier almost from the beginning of his active service.  He went AWOL during IET; he received two NJPs; he amassed a total of 128 days of lost time.  The applicant was convicted by a special court-martial and reassigned to the USARB for service of sentence and retraining.  The USARB subsequently evaluated the applicant and determined he was unfit for further service.  As a result, he was administratively discharged by the USARB under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness.

3.  The applicant's discharge packet is not available for review; however, it is presumed that his discharge proceedings were conducted in accordance with law and regulations applicable at the time.  Therefore, his character of service is commensurate with his overall record of military service.

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 the aforementioned requirement.

5.  The Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application requesting a change in discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100008956



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100008956



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1