BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100012573 


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 general discharge be upgraded to honorable.  

2.  The applicant states his discharge was inequitable because it was based on one isolated incident with no other adverse action.  

3.  The applicant provides no additional documents in support of his 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 30 June 1970 for a period of 
3 years.  

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice on five occasions for the following offenses:

* Failed to obey a lawful order issued by a captain on 31 July 1970
* Committed an assault upon a specialist four on 24 July 1971
* Failed to go to his appointed place of duty on 30 November 1972 and on 20 February 1973 (two specifications)
* Disrespectful in language towards a noncommissioned officer (NCO) on 20 January 1973
* Wrongfully communicated a threat to injure a sergeant on 20 January 1973

4.  His record also reveals a disciplinary history that includes numerous adverse counseling statements for matters such as:

* Placement on the overweight program
* Absenting himself without proper authority
* Writing dishonored checks
* Indebtedness
* Failure to report
* Poor appearance

5.  On 26 February 1973, the unit commander notified the applicant of pending separation action under the provisions of Army Regulation 635-200, paragraph 13-5(1), based on unfitness.  

6.  The unit commander cited the reasons for the separation action as the applicant’s continued disobedience and disrespectfulness towards NCOs, failure to perform his duties, and his inability to conduct himself in a military manner.  

7.  The applicant was advised of his rights.  He consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and submitted statements in his own behalf.  He felt that his discharge was inequitable based on the following reasons:

* He should have been allowed to complete his 36-month service obligation
* He was never convicted by a court-martial


* He had a medical problem that involved seizures
* He was experiencing family problems

8.  The separation authority approved the separation action under the provisions of Army Regulation 635-200, chapter 13, based on unfitness – frequent incidents of a discreditable nature with civil or military authorities with the issuance of a General Discharge Certificate.  

9.  The applicant was discharged on 12 June 1973 under the provisions of Army Regulation 635-200, chapter 13, for unfitness – frequent incidents of a discreditable nature with civil or military authorities with a general discharge.  He had completed 2 years, 11 months, and 13 days of active military service.  

10.  The applicant’s service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.  

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1) of the regulation provided, in pertinent part, 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.

12.  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.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  The applicant's record of service shows he received five Article 15s.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgrade to an honorable discharge.

3.  The evidence of record does not indicate the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his 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)                                         AR20100012573



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ABCMR Record of Proceedings (cont)                                         AR20100012573



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