IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016014 


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. 

2.  The applicant states, in effect:

* He needs his discharge upgraded so he can get medical treatment
* He was having a bad time with his wife (infidelity) and motor pool officer (he did not like him) while in the military
* He was told his discharge would be upgraded after 6 months
* He was a victim of racial discrimination  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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 26 November 1973 for a period of 3 years.  He completed his training and was awarded military occupational specialty 63B (wheel vehicle mechanic).  

3.  Between 3 June 1974 and 27 March 1975, nonjuducial punishment (NJP) was imposed against the applicant on six separate occasions for two specifications of failure to go to his appointed place of duty and five specifications of being absent without leave (AWOL).

4.  On 14 May 1975, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(4), for unfitness due to a pattern of shirking.  

5.  After consulting with counsel, the applicant waived consideration of his case by a board of officers and waived a personal appearance.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued and that he further understood that as the result of issuance of an undesirable discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement on his own behalf.  

6.  On 3 July 1975, the separation authority approved the recommendation for discharge and directed that the applicant be furnished an undesirable discharge. 

7.  Accordingly, the applicant was discharged on 23 July 1975 with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(4), for unfitness due to a pattern of shirking.  He had served 1 year, 6 months, and 9 days of total active service with 39 days of lost time.  

8.  On 12 November 1982, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade.

9.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 13, in effect at the time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a(4) of the regulation provided that members involved in an established pattern of shirking were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.  

10.  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 member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  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.

12.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR does not correct records solely for the purpose of making the applicant eligible for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The applicant contends his ability to serve was impaired by his marital problems.  However, there is no evidence he sought assistance from his chain of command or chaplain for a way to resolve his alleged problems within established Army procedures.

3.  There is no evidence of record which shows the applicant was a victim of racial discrimination.

4.  A discharge upgrade is not automatic.

5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

6.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

7.  The applicant's record of service included six NJPs and 39 days of lost time.  
As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or 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)                                         AR20100016014





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ABCMR Record of Proceedings (cont)                                         AR20100016014



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