IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100014547 


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 discharge be upgraded to honorable.

2.  The applicant states his discharge is inequitable because it is based on one isolated incident in 28 months of service, with no other adverse action.

3.  The applicant provides no additional documentation.

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 for 3 years on 28 September 1970. He completed Basic Combat Training (BCT) at Fort Knox, KY, and he completed Advanced Individual Training (AIT) at Fort Belvoir, VA.  Following AIT, he was 


awarded military occupational specialty (MOS) 52B (Power Generator Operator/
Mechanic).  He was assigned to Fort Wainwright, AK for his first permanent duty assignment.

3.  The applicant arrived in Alaska on or about 7 April 1971 and served with Company B, 171st Support Battalion, 171st Infantry Brigade.  He was absent without leave (AWOL) from 1-19 May 1972 while in Alaska.  For this offense, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) and he was punished by a forfeiture of $83.93 pay and reduction from specialist four (SP4/E-4) to private first class (PFC/E-3).  The reduction was suspended 60 days.  The suspension was later vacated and the reduction was imposed on 10 July 1972.  He departed Alaska for Fort Benning GA on or about 22 September 1972.

4.  The applicant reported to Fort Benning and was assigned to the 18th Replacement Detachment pending further assignment.  He went AWOL from 27 October to 8 November 1972 and he accepted his second NJP.  His punishment included a forfeiture of $82 pay for 1 month.  On 13 November 1972, the applicant again went AWOL and he was dropped from the rolls of the Army as a deserter.

5.  The applicant was returned to military control at Fort Belvoir on or about 29 November 1972 and assigned to the Personnel Control Facility.  Court-martial charges were preferred against him and he was tried and convicted by a special court-martial on 14 February 1973.  He was sentenced to reduction to private (PVT)/E-1, a forfeiture of $100 pay for 2 months, 30 days' restriction, and 
15 days' hard labor without confinement.

6.  On 26 March 1973, the applicant's commander notified the applicant of his intent to initiate action to separate him for unsuitability under the provisions of chapter 13, Army Regulation 635-200.  The applicant acknowledged notification consulted with counsel and waived his rights.  The discharge packet was forwarded to the approving authority.  On an unknown date, the approving authority disapproved the discharge action.

7.  On 30 March 1973, the applicant's commander notified the applicant of his intent to initiate action to separate him for unfitness under the provisions of chapter 13, Army Regulation 635-200.  The applicant acknowledged notification and again waived his rights.  The discharge packet was forwarded to the approving authority.  On 5 April 1973, the approving authority approved the applicant's discharge and directed that he receive an undesirable discharge.

8.  The applicant was discharged on 16 April 1973 with an undesirable discharge for unfitness under the provisions of chapter 13, Army Regulation 635-200.

9.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.

	a.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents and homosexual acts.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

	b.  Paragraph 13-5b provided for the separation for unsuitability, which included apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants his discharge upgraded because his undesirable discharge is inequitable based on one isolated incident in 28 months of service, with no other adverse action.

2.  The applicant's record shows a pattern of misconduct highlighted by two records of NJP and one court-martial conviction.  

3.  The applicant acknowledged notification and consulted with legal counsel who explained the basis for the separation action, its effects, and the rights available to him.  The applicant waived his rights and did not submit a statement.  His discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record of military service.









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)                                         AR20100014547



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ABCMR Record of Proceedings (cont)                                         AR20100014547



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