IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100021422 


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 (UD) be upgraded.

2.  The applicant states he was told his UD would be upgraded 2 years after his discharge.

3.  The applicant provides no additional evidence 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's record shows he enlisted in the Regular Army on 7 August 1974.  He was trained in and awarded military occupational specialty 64C (Motor Transport Operator).

3.  The record shows he was advanced to the rank and pay grade of private/E-2 on 17 December 1974 and that this is the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary history includes counseling for indebtedness and his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following six separate occasions for the offenses indicated:

	a.  5 March 1975, for being absent without leave (AWOL) from 17 through 27 February 1975;

	b.  2 May 1975, for failing to go to his appointed placed of duty at the time prescribed on 26 April 1975;

	c.  28 July 1975, for operating a military vehicle in a reckless manner on 17 July 1975;

	d.  20 August 1975, for three specifications of failing to go to his appointed place of duty at the time prescribed on 1 and 3 August 1975 and for being AWOL from 4 through 5 August 1975;

	e.  14 November 1975, for disobeying a lawful order; and

	f.  19 November 1975, for being AWOL from 6 through 10 November 1975.

5.  On 28 October 1975, the unit commander notified the applicant of his intent to recommend his discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness.  He cited the applicant's frequent incidents of a discreditable nature with civil and military authorities as the basis for the action.

6.  On 29 October 1975, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and the rights available to him.  He requested that his case be considered by a board of officers.  On 1 December 1975, he completed a revised election of rights in which he waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to submit a statement in his own behalf.

7.  On 17 December 1975, the separation authority approved the separation action and directed that the applicant be discharged for unfitness under the provisions of Army Regulation 635-212 and that he be furnished a UD.  On 16 January 1976, the applicant was discharged accordingly.

8.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant upon his discharge shows he completed a total of 1 year, 4 months, and 25 days of creditable active military service and accrued 15 days of lost time due to AWOL.

9.  There is no indication the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15 year statute of limitations.

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  The separation authority could authorize a general discharge (GD) under honorable conditions or an honorable discharge (HD) if warranted by the member's record of service.  However, when separation for unfitness was warranted, a UD was normally considered appropriate.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel contains the following guidance on characterization of service in the paragraphs indicated:

	a.  Paragraph 3-7a provides that an HD 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.

	b.  Paragraph 3-7b provides that a GD 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 HD.  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.  The applicant's contention he was advised that his UD would be upgraded 2 years after his discharge has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The Army does not have and has never had a policy to automatically upgrade discharges due to the passage of time.  The ADRB and/or this Board may upgrade a discharge if, after a comprehensive review, either determines the discharge is improper or inequitable.

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

4.  The applicant's record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history that includes his acceptance of NJP on six separate occasions, indebtedness, and his accrual of 15 days of time lost due to AWOL.  Given his undistinguished record of service and his extensive record of misconduct, the UD he received accurately reflects the overall quality of his service which did not support the issuance of an HD or a GD at the time of his discharge and does not support an upgrade now.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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 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)                                         AR20100021422



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ABCMR Record of Proceedings (cont)                                         AR20100021422



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