IN THE CASE OF:
BOARD DATE: 9 November 2010
DOCKET NUMBER: AR20100014300
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 an upgrade of his general discharge to an honorable discharge.
2. The applicant states the type of discharge he received was unjust.
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 applicants 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 applicants 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 22 October 1974. He completed training as a cannon crewman.
3. The applicant had nonjudicial punishment (NJP) imposed against him on five separate occasions between 22 November 1975 and 13 October 1977 for being derelict in the performance of his duties on 12 November 1975, being absent without leave (AWOL) or authority on three separate occasions, and for failing to go at the time prescribed to his appointed place of duty on 4 January 1977.
4. On 9 August 1977, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13-5a(1), for unfitness - frequent incidents of a discreditable nature with civil and military authorities. He acknowledged receipt of the notification and, after consulting with counsel, he elected not to submit a statement in his own behalf.
5. The appropriate authority approved the recommendation for discharge on 23 November 1977 and he directed the issuance of a General Discharge Certificate.
6. On 30 November 1977, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13-5a(1) with a General Discharge Certificate. He had completed 2 years, 11 months, and 24 days of total active service with
45 days of time lost due to AWOL. Item 26 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 only shows the Marksman Marksmanship Qualification Badge.
7. The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.
8. Army Regulation 635-200, in effect at the time, provided for discharge of enlisted personnel. Chapter 13 of this regulation governed separation for unfitness or unsuitability. Paragraph 13-5a(1) provided specifically for discharge for unfitness based on frequent incidents of a discreditable nature with civil or military authorities. An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may be issued if the individual has been awarded a personal decoration or it warranted by the particular circumstances in his/her case. The type of discharge will be directed by the convening authority.
9. Army Regulation 635-200, 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 members 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been considered. However, based on his overall record, the character of his service is not unjust.
2. His records show he had NJP imposed against him on five separate occasions for his acts of indiscipline while he was in the Army. His records do not show award of any personal decorations. It also appears that his entire service record was considered when the separation authority directed the issuance of a general discharge instead of the undesirable discharge that was normally considered appropriate. Therefore, his general discharge was not too harsh or unjust.
3. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20100014300
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ABCMR Record of Proceedings (cont) AR20100014300
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