IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100018075 


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 undesirable discharge (UD) to a general discharge.

2.  He states, in effect, his discharge should be upgraded due to a simple lapse in judgment, the other parties involved received no disciplinary action, his EOE (end of enlistment) was due shortly, and the third party was a military police and got nothing out of it.  His discharge should also be upgraded because he had served with an excellent record up until that point and was in charge of other troops.  

3.  He provides a completed DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) and 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 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's record shows he enlisted in the Regular Army in pay grade E-3 on 22 April 1974 for 3 years.  He completed training and he was awarded military occupational specialty 44B, Metal Worker.  

3.  On 14 May 1974, he was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty on 11 May 1974.

4.  He was promoted to pay grade E-5 on 9 September 1974.

5.  On 1 July 1975, he was convicted by special court-martial of larceny of a motorcycle on 24 March 1975.  He was sentenced to a reduction to pay grade 
E-1, restriction for 60 days, and a forfeiture of $50.00 pay per month for 6 months.  

6.  On 16 July 1975, the convening authority approved the sentence and ordered it duly executed.  He was reduced to pay grade E-1 on 16 July 1975.

7.  On 21 August 1975, he was punished under Article 15 of the UCMJ for breaking restriction on 14 August 1975.

8.  On 21 August 1975, the applicant's unit commander notified the applicant of his possible elimination from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 13-5a(1), for frequent incidents of discreditable nature with civil or military authorities.  The unit commander advised the applicant of his rights.  

9.  On 2 September 1975, after consulting with counsel, he acknowledged the proposed separation action.  He elected representation by counsel and to have his case heard by a board of officers.  He acknowledged he understood that he might be issued a general discharge, under honorable conditions and the effects of such a discharge.  He further acknowledged the results of the issuance of a discharge under other than honorable conditions.  He elected not to submit a statement in his own behalf.

10.  On 16 September 1975, the applicant's unit commander recommended the applicant appear before a board of officers for the purpose of determining whether the applicant should be discharged before the expiration of his term of service.  The unit commander recommended the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for frequent incidents of a discreditable nature with civil and military authorities.  He stated since the applicant's arrival to that unit, the applicant had exhibited an inability to accept normal instructions and directions associated with military life.  The applicant had been counseled on his failing to comply with instructions, substandard performance of duty, and an indifferent attitude.  The applicant had also been convicted by a special court-martial for theft and received 2 company grade Article 15s.

11.  On 16 September 1975, the applicant's battalion recommended approval of the applicant's discharge.

12.  On 3 October 1975, the appropriate authority approved his discharge and directed issuance of a UD Certificate.

13.  He was discharged from active duty in pay grade E-1 on 8 October 1975, under the provisions of Army Regulation 635-200, paragraph 13-5a(1).  He was issued a UD Certificate.  He was credited with 1 year, 5 months, and 22 days of total active service.

14.  On 8 March 1977, the Army Discharge Review Board denied his request for an upgrade of his discharge.

15.  Army Regulation 635-200, then in effect, set forth the policy and prescribed the procedures for administrative separation of enlisted personnel.  Chapter 13 applied to separation for unfitness and unsuitability.  Paragraph 13-5a(1) provided for the separation of individuals for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  When separation for unfitness was warranted, a UD was issued by the separation authority.

16.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and found to be without merit.  The evidence shows he was twice punished under Article 15 and he was convicted by a special court-martial for larceny.  His unit commander stated that since the applicant's arrival to that unit, the applicant had exhibited an inability to accept normal instructions and directions associated with military life.  The applicant had been counseled on his failing to comply with instructions, substandard performance of duty, and an indifferent attitude.  

2.  There is no evidence in his records and he has provided no evidence to show that his discharge was unjust.  He has also not provided evidence sufficient to mitigate the character of his discharge.  At the time separation action was initiated, he acknowledged that he might be issued an under other than honorable conditions discharge.  He elected not to submit a statement in his own behalf.  It appears his repeated unsatisfactory performance diminished the quality of his service below that meriting a general discharge.

4.  Without evidence, it appears his release from active duty processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting his requested relief.

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)                                         AR20100018075





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ABCMR Record of Proceedings (cont)                                         AR20100018075



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