IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100011788 


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, in effect, upgrade of his general discharge to an honorable discharge.

2.  The applicant states that on 7 August 1978 his DD Form 214 was upgraded to a general discharge.  He further states that he was naive, young, and foolish when he served on active duty.  The applicant continues that he has grown up tremendously since then and he would like an upgrade of his discharge to honorable.

3.  The applicant provides:

* a copy of his DD Form 214 (Report of Separation from Active Duty)
* a copy of a letter from the Army Discharge Review Board
* a copy of a letter from the Office the Adjutant General
* a copy of his DD Form 257 (General Discharge Certificate)
* a copy of his high school diploma

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 record shows he enlisted in the Regular Army on 30 November 1964 for a period of 3 years.  At the time of his enlistment he was 18 years and 7 months old.  He was trained in, awarded, and served in military occupational specialty 62E (Heavy Construction Equipment Operator).  Records further show the highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  On 23 June 1965, nonjudicial punishment (NJP) was imposed against the applicant under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

4.  On 16 October 1965, a special court-martial (SPCM) convicted the applicant of being absent without leave (AWOL) from on or about 14 August 1965 through on or about 26 August 1965.  The resultant sentence included a reduction to private (PV1)/E-1.

5.  On 10 January 1966, a summary court-martial (SCM) convicted the applicant of being AWOL from on or about 12 December 1965 through on or about 30 December 1965.

6.  On 25 July 1966, NJP was imposed against the applicant for being AWOL from on or about 23 July 1966 to on or about 25 July 1966.  His punishment included a reduction to private (PV2)/E-2.

7.  On 12 January 1967, an SPCM convicted the applicant of being AWOL from on or about 12 December 1966 through on or about 30 December 1966.

8.  On 17 February 1967, the unit commander advised the applicant that he was recommending his discharge under the provisions of Army Regulation 635-212 (Personnel Separation-– Discharge - Unfitness and Unsuitability) by reason of frequent incidents of a discreditable nature with military authorities.

9.  On 9 March 1967, the applicant was advised of the basis for his separation under the provision of Army Regulation 635-212 for unfitness.  The applicant indicated that he had consulted with counsel, that he waived consideration of his case by a board of officers, that he waived a personal appearance before a board of officers, that he did not provide statements in his own behalf, and that he did not request representation by military counsel.

10.  On 17 April 1967, NJP was imposed against the applicant for being in an improper uniform and disorderly conduct.

11.  On 19 May 1967, the applicant was discharged under the provisions of Army Regulation 635-212 by reason of frequent incidents of a discreditable nature with military authorities with issuance of an undesirable discharge.  The DD Form 214 he was issued shows he completed 2 years and 5 days of total active service with 165 days of time lost due to AWOL and confinement. 

12.  On 6 April 1977, the Army Discharge Review Board (ADRB) voted to upgrade the applicant's discharge to a general discharge under the criteria of the Special Discharge Review Program (SDRP) based on his overall service record. On 19 July 1978, the ADRB voted to affirm this decision under uniform standards based on his completion of 2 years of service.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was 18 years and 7 months of age at the time of his enlistment.  Records further show he was 19 years of age at the time of his offenses.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulations in effect at the time.  The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  The applicant's disciplinary history included his acceptance of NJP, two SPCM convictions, an SCM conviction, and accrual of 165 days of time lost due to AWOL and confinement.  Based on this record of indiscipline, the applicant's service clearly does not meet the acceptable standards of performance and conduct for Army personnel.  Although the ADRB upgraded his undesirable discharge to a general discharge at their discretion, there is no basis for further upgrading of his general discharge to an honorable discharge.

4.  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)                                         AR20100011788



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ABCMR Record of Proceedings (cont)                                         AR20100011788



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