BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100013495 


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 to a general discharge under honorable conditions.

2.  The applicant states, in effect, he was told he was receiving a general discharge.  He has been a good upstanding member of the community since he was discharged from the military.  He admits he made a mistake while on active duty.  He also states he was given false information about the discharge; he was led to believe he was being issued a general discharge.  He would have fought it had he known the difference between the two discharges.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) with an effective date of 21 August 1974.

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 military personnel records show he enlisted in the Regular Army on 31 October 1972 for 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 64C (Motor Transport Operator).  

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on:

* 29 November 1972 for two specifications of being disrespectful towards a noncommissioned officer (NCO)
* 12 December 1972 for two specifications of being disrespectful towards an NCO
* 23 January 1973 for being absent without leave (AWOL) from on or about 12 January to 17 January 1973

4.  The applicant was assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 11th Infantry, Fort Carson, CO on 26 April 1973.  He accepted NJP under Article 15, UCMJ on:

* 4 June 1973 for being absent from his appointed place of duty
* 29 June 1973 for being AWOL from on or about 18 June to 20 June 1973
* 16 July 1973 for failure to go at the prescribed time to his appointed place of duty
* 14 November 1973 for loss of an M16A1 rifle

5.  On 29 January 1974, the applicant pled guilty and was found guilty before a special court martial for:

* failure to go to his appointed place of duty
* being AWOL from on or about 31 December 1973 to 3 January 1974
* indulging in intoxicating liquor until he became incapacitated for the proper performance of his duties

6. The applicant was assigned to the 360th Transportation Company at Fort Carson, CO on 22 February 1974.  He accepted NJP under Article 15, UCMJ on:

* 27 March 1974 for failure to obey a lawful order from an NCO and being careless in the operation of a government vehicle
* 28 March 1974 for disobeying a lawful order from an NCO and being disrespectful towards an NCO
7.  On 13 May 1974, the applicant's commander informed him that he intended to recommend him for elimination from the service for unfitness.  The commander stated that if discharge was Effected he could receive an undesirable discharge.  He stated that as a result of such a discharge the applicant would be deprived of many or all Army benefits and benefits as a veteran under both Federal and State laws.  The commander stated the applicant had the right to:

* present his case before a board of officers
* submit statements in his own behalf
* be represented by counsel
* waive the above rights in writing
* withdraw any waiver of his rights before the date the discharge authority directs or approves his discharge and request that his case be presented before a board of officers

8.  On 13 May 1974, the applicant acknowledged he had been advised of the basis for contemplated action to discharge him for unfitness.  He waived his right to:

* have his case considered by a board of officer
* a personal appearance before a board of officers
* representation by appointed counsel

9.  He acknowledged he understood that as a result of the issuance of a discharge under conditions other than honorable he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  He did submit a statement in his own behalf.

10.  In his statement, the applicant indicated his attitude towards the Army was "unlikable" and he felt he was doing himself no good the way things were.  He felt he could not be potentially rehabilitated.  He didn't really care for the discharge he would get but "if I get it, that's it I guess."

11.  On 16 May 1974, the applicant received a mental status evaluation.  The examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.


12.  On 3 June 1974, the applicant's commander recommended him for discharge for unfitness due to his frequent incidents of a discreditable nature.  The commander stated the applicant was a rehabilitative transfer from HHC, 
1st Battalion, 11th Infantry on 22 February 1974.  He recommended further rehabilitation measures be waived.

13.  On 13 August 1974, the appropriate authority waived rehabilitative reassignment, directed that the applicant be discharged under the provisions of Chapter 13 of Army Regulation 635-200 (Personnel Separations), and directed that he be furnished an Undesirable Discharge Certificate.

14.  On 21 August 1974, the applicant was discharged under the provisions of Chapter 13 of Army Regulation 635-200 by reason of unfitness due to frequent incidents of a discreditable nature.  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 9 months, and 10 days of active service and he had 11 days of time lost.

15.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a provided for discharge of individuals for unfitness.  Among the reasons for unfitness were frequent incidents of a discreditable nature with civil or military authorities and an established pattern for shirking.  This regulation further provided that an individual separated for unfitness would be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may have been issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in their case.

17.  Army Regulation 635-200 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 his undesirable discharge should be upgraded to a general discharge under honorable conditions because he was given false information about the discharge.  He was led to believe he was getting a general discharge.  He contends he would have fought being issued an undesirable discharge had he known the difference between the two discharges.

2.  When the applicant was notified of the separation action his commander stated the discharge may be under other than honorable conditions.  He also stated the applicant would be deprived of many or all Army benefits and benefits as a veteran under both Federal and State laws if issued such a discharge.  There was no mention of a general discharge.

3.  In his statement the applicant acknowledged that he understood that as a result of the issuance of a discharge under conditions other than honorable he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  

4.  The applicant waived his rights to have his case considered by a board of officers, an appearance before a board of officers, and representation by counsel.

5.  In his statement submitted regarding his separation processing the applicant stated his attitude toward the Army was "unlikable."  "He felt he couldn't be rehabilitated."  

6.  In view of the above, there is no evidence of false information being provided to the applicant.  There was no mention of a general discharge and he was specifically informed of the consequences of the discharge he was about to receive.

7.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

8.  The applicant accepted NJP on nine occasions and was convicted by a special court-martial.  This clearly shows his service was unsatisfactory.  Therefore, there is no basis to upgrade his discharge to a 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)                                         AR20100013495



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ABCMR Record of Proceedings (cont)                                         AR20100013495



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