BOARD DATE:	 15 February 2011 

		DOCKET NUMBER:  AR20100021280 


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, in effect, that his undesirable discharge be upgraded.

2.  He states at the time he thought that he was getting a hardship discharge due to having family problems.  His father was ill at the time and he did not have an adequate education to understand his discharge was undesirable instead of hardship.  He continues that he was young at the time and made mistakes while in the military; now he is different person trying to build a life.  He states he wishes to have his record cleaned so that he can apply for assistant through the Department of Veterans Affairs (DVA).  He is not in good health and he has nowhere else to turn.  He concludes that he cannot get a job because of his inability to read and write.  If it were not for his family members, he would be homeless.  He is asking for a chance to turn his life around.  

3.  He provides no additional documentation in support of this case.

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 18 July 1972, for a 3-year term of service.  He successfully completed basic combat training and advanced individual training and was awarded military occupational specialty 94B (Cook).

3.  On 1 February 1973, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disrespecting a noncommissioned officer (NCO) and dropping his hand salute while at "present arms "battalion reveille formation.

4.  A DD Form 458 (Charge Sheet), dated 6 February 1973, shows charges were preferred against him for:

* failure to be at his appointed place of duty
* being incapacitation in the proper performance of his duties
* using disrespectful language towards a superior NCO
* failure to obey a lawful order from a superior commissioned officer
* breaking arrest
* two specifications of assaulting a NCO

5.  On 6 February 1973, after consulting with counsel, he submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an undesirable discharge certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his behalf.

6.  On 7 February 1973, the appropriate authority approved his request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed that he be issued an undesirable discharge certificate.  On 20 February 1973, he was discharged accordingly.  He had completed 7 months and 3 days of creditable active service with no lost time.

7.  Item 32 (Civilian Education) of his DA Form 20 (Enlisted Qualification Record) shows he completed 1 year of high school in 1971.
8.  He applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 31 January 1980, the ADRB reviewed and denied his request for upgrade.  The ADRB determined his discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, 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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has not provided evidence to confirm his learning ability at the time was the cause of his misconduct.  The available evidence shows he completed 1 year of high school prior to enlisting in the military and he was awarded MOS 94B which showed he could function as a Soldier.  Unfortunately, there is no evidence that he was any less educated than other Soldiers who had completed 1 year of high school.  In addition, there is no evidence of record that substantiates his father was ill at home.  In addition, the Board does not grant relief solely for the purpose of obtaining DVA benefits.

2.  His administrative separation is presumed to have been accomplished in accordance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

4.  His records show he received one Article 15 and numerous charges including failure to being at his appointee place of duty, incapacitated for duty, disrespectful to an NCO, commissioned officer, and assault, the charges which he requested separation in lieu of court martial.  He completed 7 months and
3 days of his 3-year term of service.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, which are required for the issuance of a general or honorable discharge.  Therefore, there is no basis for granting him 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)                                         AR20100021280





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ABCMR Record of Proceedings (cont)                                         AR20100021280



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