IN THE CASE OF:	  

		BOARD DATE:	 14 December 2010 

		DOCKET NUMBER:  AR20100013232 


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 undesirable discharge.

2.  The applicant states, in effect, he was 19 years old when he took a government vehicle off post and he admits his hair was over his ears.  However, these actions should not have been the cause for his undesirable discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 born on 7 February 1957.  He enlisted in the Regular Army on 29 April 1975 for a 3-year period.  At that time, he was 18 years, 2 months and 23 days old.  He completed his initial entry training and he was awarded military occupational specialty 57H (Terminal Operations Specialist).

3.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions for the following offenses:

* 5 August 1975 for feigning illness for the purpose of avoiding his duty on 30 July 1975
* 23 June 1976 for disobeying a lawful order from a superior noncommissioned officer (NCO) on 3 June 1976
* 24 June 1976 for failing to go at the time prescribed to his appointed place of duty on 22 June 1976
* 19 July 1976 for disobeying a lawful order of a superior NCO on 9 July 1976

4.  The applicant was tried and convicted by a special court-martial of one specification of wrongfully appropriating a government vehicle, the property of the U.S. Army, and for going from his appointed place of duty without authority on
29 July 1976.  He was sentenced to forfeit $200.00 per month for 2 months and confinement at hard labor for 6 weeks.  His sentence was adjudged on 18 August 1976 and approved on 27 August 1976.  

5.  On 8 October 1976, he was evaluated by a mental health professional.  The mental health professional found no evidence of underlying previously-unrecognized medically-disqualifying emotional illness.  He further indicated that the applicant was and is mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He also met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

6.  The applicant's separation packet and the complete facts and circumstances pertaining to his discharge are not available for the Board's review.  However, his service record contains a DD Form 214 that shows he was discharged on 27 October 1976 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 13-5a(1), for unsuitability, with an undesirable discharge in pay grade E-1.  This DD Form 214 confirms he completed 1 year, 4 months, and 25 days of total active service with 34 days of time lost from 18 August 1976 through 20 September 1976. 

7.  There is no evidence of record to show the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  Paragraph 5a(1) 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 individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate, except that an honorable or general discharge may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his/her case.

	b.  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.

	c.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his age, 19 years, contributed to his decision to take a government owned vehicle without authority.   A review of his record of service, which included nonjudicial punishment on four separate occasions and conviction by a special court-martial shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

2.  His record is void of a discharge packet containing the specific facts and circumstances concerning the events that led to the applicant’s discharge;


however, his record contains a DD Form 214 that identifies the separation authority and reason for his discharge and this document carries with it a presumption of government regularity in the discharge process.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were protected throughout the separation process.

3.  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)                                         AR20100013232



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ABCMR Record of Proceedings (cont)                                         AR20100013232



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