IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100013036 


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 his undesirable discharge be upgraded.  

2.  The applicant states:

* His father was dying of cancer
* He was an only child
* It was putting a lot of pressure on him
* He would have been a better Soldier if his father was not sick 

3.  The applicant provides no documentary evidence 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 was inducted into the Army of the United States on 
12 November 1971.  He successfully completed basic combat training.

3.  Records show the applicant was absent without leave (AWOL) from 
3-5 March 1972. 

4.  On 13 March 1972, while in advanced individual training, the applicant was convicted by a summary court-martial of failing to go a the time prescribed to his appointed place of duty and failing to obey a lawful order.  He was sentenced to be confined at hard labor for 20 days and to forfeit $100.00 per month for one month.  On 14 March 1972, the convening authority approved the sentence.

5.  On 31 March 1972, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities with an undesirable discharge.  The unit commander based his recommendation for separation on the applicant's disrespect and disregard for military authority, his expressed unwillingness to be a Soldier, and contemptuous attitude toward military life.  He stated the applicant had stated numerous times he would never function in a manner acceptable to military standards.

6.  After consulting with counsel and being advised of his separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf.

7.  Records show the applicant was AWOL from 14-17 April 1972.

8.  On 5 May 1972, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.

9.  Records shows the applicant was AWOL from 9-10 May 1972.

10.  On 10 May 1972, while in an AWOL status, the applicant was separated with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil or military authorities.  He had served 5 months and 24 days of creditable active service with 25 days of lost time.

11.  On 14 April 1977, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

12.  Army Regulation 635-212, 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.

13.  Army Regulation 635-200 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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.  Family problems are not normally grounds for upgrading a discharge.  There is no evidence of record to show the applicant sought assistance from his chain of command or chaplain on a way to resolve his alleged problems within established Army procedures.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

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

4.  The applicant's brief record of service included one summary court-martial conviction and 25 days of lost time.  As a result, his record of service was not satisfactory and did 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 honorable or general 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)                                         AR20100013036





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ABCMR Record of Proceedings (cont)                                         AR20100013036



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