IN THE CASE OF:	  

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100009555 


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 an upgrade of his discharge and change of his service entry date to 1 November 1970.

2.  The applicant states he enlisted in the Regular Army on 1 November 1970, the last year one could enlist for 2 years.  He was married in December 1970 and divorced in 1976.  He was offered a general discharge by his company commander who always hated him for some unknown reason.

3.  The applicant provides no additional documents to substantiate his request.

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 records are incomplete; however, his enlistment contract shows he enlisted for 2 years and entered active duty on 1 November 1971.

3.  His DA Form 20 (Enlisted Qualification Record) shows:

* in item 22 (Military Occupational Specialties) – 05B2O, Intermediate Speed Radio Operator, 21 March 1972
* in item 27 (Military education) – completed 10-week Radio Operator Course
* in item 33 (Appointments and Reductions) – advanced to pay grade E-2 on 1 March 1972 – reduced to pay grade E-1 on 16 May 1972
* in item 44 (Time Lost) – absent without leave (AWOL) on 6 April 1972

4.  Most of the available information about the applicant's period of service is found in a 12 March 1972 request for a mental hygiene consultation.  This documents states:

* the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for AWOL offenses on four occasions between 7 March 1972 and 10 April 1972
* his disciplinary problems led to the elimination action
* his conduct and efficiency had both been unsatisfactory and he had not responded favorably to any of the attempts to make him a more reliable Soldier
* he was not so much an overt disciplinary problem as seeming to lack the energy to accomplish any mission assigned to him
* in addition to the four NJP's, he had been counseled several times

5.  No discharge package is available.  On 19 May 1972, the applicant was separated under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness due to frequent incidents of a discreditable nature.  He was issued an Undesirable Discharge Certificate and his service was characterized as having been served under conditions other than honorable.

6.  Army Regulation 635-212 (Personnel Separations), 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.  An undesirable discharge was normally considered appropriate.

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  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.

8.  Paragraph 3-7b of 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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-5 states, "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 states he enlisted on 1 November 1970, the last year one could enlist for 2 years.  He was married in December 1970 and divorced in 1976.  He was offered a general discharge by the company commander who always hated him for some unknown reason.

2.  The available evidence shows he enlisted in 1971.  There is no available evidence to substantiate the claimed 1 November 1970 active service entry date.

3.  In the absence of evidence to the contrary, the discharge process must be presumed to have been in accordance with applicable law and regulations and the applicant's service appropriately characterized.  There is nothing in the available records or in the applicant's submission to overcome this presumption.

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

5.  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 this requirement.



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)                                         AR20100009555



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)