IN THE CASE OF:	  

		BOARD DATE:	  6 January 2011

		DOCKET NUMBER:  AR20100018125 


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, in effect, that he encountered difficulty with the basic training cadre and the other Soldiers from the very beginning and it continued until his discharge.  He also states that he was supposed to receive a general discharge but a lieutenant who disliked him changed it to an undesirable discharge.

3.  The applicant provides an eight-page handwritten letter explaining 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 was born on 1 October 1952 and he enlisted in the Regular Army in Bangor, Maine on 15 September 1972 for a period of 2 years.  He was transferred to Fort Dix, New Jersey to undergo his basic training.

3.  On 27 September 1972, nonjudicial punishment was imposed against him for disobeying a lawful order from a superior noncommissioned officer (NCO).

4.  On 28 September 1972, nonjudicial punishment was imposed against him for being disrespectful in language towards a superior NCO.

5.  He was transferred to another unit and on 17 October 1972 he was convicted by a summary court-martial of two specifications of being disrespectful towards a commissioned officer and one specification of disobeying a lawful order from a commissioned officer.

6.  On 7 November 1972, nonjudicial punishment was imposed against him for three specifications of failure to repair.

7.  On 8 November 1972, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-212 for unfitness.  He cited as the basis for his recommendation the applicant’s disciplinary record, his failure to respond to numerous counseling sessions, his immature attitude, his disruptive behavior, and his resentment of authority.  He also advised the applicant that he was recommending that he receive an undesirable discharge.

8.  After consulting with counsel the applicant waived all of his rights and elected not to submit a statement in his own behalf.

9.  The appropriate authority (a major general) approved the recommendation for discharge on 4 December 1972 and directed that he be furnished an Undesirable Discharge Certificate.

10.  Accordingly, he was discharged under other than honorable conditions on 20 December 1972, under the provisions of Army Regulation 635-212 for unfitness due to his frequent involvement in frequent incidents of a discreditable nature with civil and military authorities.  He had served 2 months and 23 days of total active service.



11.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  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) of the regulation provided, in pertinent part, 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.

13.  Army Regulation 635-200 sets forth the basic policy 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.

14.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors, which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted.  However, the offenses committed by the applicant were too numerous and too serious and his overall record of service is too undistinguished for equitable relief to be appropriate.  His service simply does not rise to the level of honorable or under honorable conditions.



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)                                         AR20100018125





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018125



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1