IN THE CASE OF:	  

		BOARD DATE:	    26 August 2010

		DOCKET NUMBER:  AR20100009951 


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 discharge be upgraded.

2.  The applicant states that after leaving Germany, he went to Fort Riley, Kansas, and was advanced to the rank of E-4.  He went back to Germany for war games and they were not given heaters for their tracks and trucks.  He contends that a case of rations fell on his foot and he ended up in the hospital with an infection on both legs.  When he returned to Fort Riley, he could not wear boots or go to the field.  His equipment was stolen and he was treated as though it was his fault.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of this 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 enlisted in the Regular Army on 20 December 1972.  He completed initial entry training and was awarded military occupational specialty 91B (Medical Specialist).

3.  On 1 October 1973, he was found guilty by a special court-martial of unlawfully entering a radio shop with the intent to commit larceny and for larceny of private property.  The sentence consisted of reduction to the grade of private/E-1, confinement at hard labor for 6 months, and forfeiture of $202.00 per month for 6 months.

4.  He accepted nonjudicial punishment on the following occasions:

	a.  on 16 January 1974, for failing to go at the time prescribed to his appointed place of duty;

	b.  on 4 February 1974, for being absent from his place of duty without authority;

	c.  on 22 November 1974, for four specifications of failing to go at the time prescribed to his appointed place of duty, disobeying a lawful command from a commissioned officer, and disobeying a lawful order from a noncommissioned officer;

	d.  on 18 December 1974, for not having a military identification card in his possession;

	e.  on 13 January 1975, for failing to go at the time prescribed to his appointed place of duty and for disobeying a lawful command from a commissioned officer;

	f.  on 7 February 1975, for failing to go at the time prescribed to his appointed place of duty;

	g.  on 26 February 1975, for disobeying a lawful command from a commissioned officer;

	h.  on 3 March 1975, for two specifications of failing to go at the time prescribed to his appointed place of duty; and

	i.  on 12 March 1975, for failing to go at the time prescribed to his appointed place of duty and for being disrespectful towards a commissioned officer.

5.  A memorandum from Company C, 1st Battalion, 2d Infantry, dated 28 March 1975, subject:  Record of Counseling, indicates he was counseled and/or reprimanded on 12 occasions in addition to his acceptance of nonjudicial punishment.

6.  On 28 March 1975, his commander recommended that he be separated from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for frequent acts of a discreditable nature with military authorities.  He based his recommendation on the applicant's record of nonjudicial punishment, court-martial conviction, and his refusal to rehabilitate after repeated attempts by his entire chain of command.

7.  On 28 March 1975, the applicant consulted with counsel and waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to make a statement in his own behalf.

8.  On 1 April 1975, the appropriate authority approved the recommendation and directed that he be issued an Undesirable Discharge Certificate.  On 12 May 1975, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness based on frequent incidents of a discreditable nature with authorities with a general under honorable conditions discharge.  He completed 2 years, 2 months, and 9 days of creditable active service and accrued 74 days of lost time.

9.  The Army Discharge Review Board concluded his separation was proper and equitable and denied his request for an upgrade of his discharge on 24 January 1979.

10.  Army Regulation 635-200, chapter 13, in effect at the time, established the policies and provided procedures and guidelines for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  Paragraph 13-5a(1) applied to separation for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

11.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.  However, he has not provided any evidence or a sufficiently mitigating argument to warrant an upgrade of his discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.

3.  His record of indiscipline includes several instances of nonjudicial punishment, a court-martial conviction, and 74 days of lost time.  Based on this extensive record of indiscipline, his service clearly did not meet the standards of acceptable conduct by military personnel.  This record of indiscipline rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100009951



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ABCMR Record of Proceedings (cont)                                         AR20100009951



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