IN THE CASE OF:
BOARD DATE: 16 November 2010
DOCKET NUMBER: AR20100014156
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 undesirable discharge be upgraded to an honorable discharge.
2. The applicant states he would like an upgrade of his discharge for his job at the Rappahannock Area Community Services Board.
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States 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 29 September 1970 for a period of 3 years.
3. On various occasions between June 1971 and March 1972, the applicant received counseling for misconduct, attitude, appearance, and performance. The counseling statements are not available in his service record.
4. On three separate occasions, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 1 March 1972 to 13 March 1972, disobeying a lawful order from his superior noncommissioned officer, and being AWOL from 24 July 1972 to 8 August 1972.
5. The company commander notified the applicant of the pending separation action under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness for frequent incidents of a discreditable nature with military authorities. He was advised of his rights. The company commander recommended that the applicant be issued a general discharge.
6. The applicant consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and did not submit statements in his own behalf.
7. The separation authority waived further counseling and rehabilitation requirements and directed separation under the provisions of Army Regulation 635-212 for unfitness with the issuance of an Undesirable Discharge Certificate.
8. The applicant was separated on 7 December 1972 under the provisions of Army Regulation 635-212 for unfitness for frequent incidents of a discreditable nature with civil or military authorities with an undesirable discharge. He completed 2 years and 5 days of active military service with 63 days of lost time due to AWOL.
9. The applicant's service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
10. 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) 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.
11. 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.
12. 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. The applicant's request for an upgrade of his discharge for his job is acknowledged; however, this issue is not sufficiently mitigating to warrant an upgrade in this case.
2. The applicant's record of service shows he received three Article 15's which included 63 days of AWOL and disobeying a lawful order.
3. It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge and characterized his service as undesirable.
4. The evidence of record does not indicate the actions taken in the applicant's case were in error or unjust. Therefore, there is no basis for granting his request for an upgrade of his discharge from undesirable to honorable.
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) AR20100014156
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ABCMR Record of Proceedings (cont) AR20100014156
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