IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100011513 


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 under other than honorable conditions discharge.

2.  The applicant states his request for discharge upgrade is based on passage of time and possible post-traumatic stress disorder (PTSD).

3.  The applicant provides a copy of his social security card and his birth certificate. 

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 show he enlisted in the Regular Army on 18 May 1973 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 26P (Radio Propogation Specialist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3. 

3.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* On 13 April 1974, for being absent without leave (AWOL) from 13 April to 13 May 1974
* On 30 October 1974, for participating in a breach of the peace
* On 31 January 1975, for failing to repair

4.  On 30 January 1975, his company commander initiated a DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate) against him citing his prior misconduct, non-response to counseling, and the need for constant supervision even for the most menial tasks.  The applicant was provided with a copy of this bar action and he did not desire to submit a statement in his own behalf.  His bar was ultimately approved by the proper approval authority subsequent to a recommendation of approval by various members of his chain of command.

5.  His records reveal his acceptance of more NJP under the provisions of Article 15, UCMJ, as follows:

* On 3 February 1975, for failing to repair and assaulting a sergeant
* On 11 February 1975, for wrongfully possessing marijuana

6.  On 28 March 1975, he pled not guilty at a special court-martial to one specification of disobeying a lawful order from the Military Police and being disorderly.  He was found guilty and sentenced to confinement at hard labor for
2 months, confinement without hard labor for 3 months, forfeiture of $100.00 pay per month for 3 months, and 2 months of restriction.  The sentence was adjudged on 28 March 1975 and was approved on 17 April 1975.

7.  His available medical records, including his separation physical and chronological record of medical care, do not show he was diagnosed with PTSD or any other mental condition.

8.  The facts and circumstances surrounding his discharge are not available for review with this case; however, his records contain a properly-constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 16 May 1975 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5a, and special program designator (SPD) JLB [Unfitness - frequent involvement of a discreditable nature with authorities].  He received a character of service of under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  This form further shows he completed 1 year, 10 months, and 29 days of total active service with 30 days of time lost.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 at the time contained the policy and outlined the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

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 undesirable discharge should be upgraded.

2.  The applicant's records reveal a history of misconduct which includes five instances of NJP, one court-martial, one instance of marijuana possession, and AWOL.  He was provided with multiple counselings and/or opportunities for rehabilitation by his chain of command but he failed to respond constructively.  Accordingly, his chain of command appears to have initiated separation action against him.

3.  The discharge proceedings were presumably conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service appear to be both proper and equitable.  

4.  His contention that his discharge should be upgraded due to the passage of time is without merit as the Army has never had a policy wherein a character of service is upgraded due to the passage of time.  Additionally, his contention of possible PTSD is also without merit as there is no evidence of record and he did not submit any evidence of any mental disorder diagnosis during his military service.

5.  Based on his record of indiscipline, the applicant's service clearly did 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 either a general or an honorable discharge.

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)                                         AR20100011513



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ABCMR Record of Proceedings (cont)                                         AR20100011513



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