BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100013743 


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.

2.  The applicant states:

* He was not given a chance to speak on his behalf or have anyone speak for him during his court-martial
* He did hit a noncommissioned officer but it was an automatic response to the circumstance he was in
* He was protecting himself after being molested in his bunk by a Korean Soldier
* The courtesy patrol saw him throw the Korean Soldier back to his side of the building, whipped open the door, pushed him into the diesel space heater, and kept coming at him
* He swung and apparently hit the noncommissioned officer in the eye 
* He was never given the opportunity to explain what happened, never given representation, and never given the opportunity for counseling for the molestation that happened to him in the barracks  

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) 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 16 June 1971 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 63B (wheel vehicle mechanic).

3.  On 26 November 1971, nonjudicial punishment (NJP) was imposed against the applicant for sleeping on guard duty.  His punishment consisted of restriction.

4.  On 24 February 1972, NJP was imposed against the applicant for being absent without leave (AWOL) for 4 and 1/2 hours.  His punishment consisted of a forfeiture of pay, reduction to E-2 (suspended), restriction (suspended), and extra duty.

5.  On 18 September 1972, NJP was imposed against the applicant for being AWOL from 5 September 1972 to 7 September 1972.  His punishment consisted of a verbal reprimand, forfeiture of pay, and reduction to E-3 (suspended).  On 
6 November 1972, the suspended punishment (reduction to E-3) was vacated.

6.  On 7 November 1972, NJP was imposed against the applicant for being AWOL for almost 3 hours.  His punishment consisted of an oral reprimand, forfeiture of pay, restriction, and extra duty.

7.  On 2 January 1973, the applicant was convicted by a summary court-martial of assault upon a specialist five.  He was sentenced to forfeit $100 for 1 month and to be reduced to E-2.  On 5 January 1973, the convening authority approved the sentence.

8.  A bar to reenlistment was imposed against the applicant on 15 January 1973.

9.  On 16 February 1973, NJP was imposed against the applicant for being AWOL for 3 hours.  His punishment consisted of an oral reprimand, restriction, and extra duty.

10.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, discharge orders and the applicant's DD Form 214 show that he was discharged on 19 March 1973 with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 9 months, and 4 days of total active service.

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

12.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  

13.  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:

The applicant's contentions were noted.  However, in the absence of evidence to the contrary, it must be presumed that the applicant's separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request 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)                                         AR20100013743





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ABCMR Record of Proceedings (cont)                                         AR20100013743



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