IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100023125 


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 to a honorable discharge (HD).

2.  The applicant states he was twenty-one years old and unable to adjust to military life.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 Regular Army on 2 December 1969.  He served in military occupational specialty (MOS) 76Y (Armorer).

3.  His DA Form 20 (Enlisted Qualification Record) shows that was promoted to specialist four (SP4/E-4) on 16 September 1971 and this was the highest rank he attained while serving on active duty.  His record shows that he was reduced on two separate occasions and that he was last reduced to private (PVT)/E-1 on 3 December 1971. 

4.  The applicant's DA Form 20 also shows, in item 44 (Time Lost Under Section 972, Title 10, USC), he accrued 53 days of lost time for being absent without leave (AWOL) from 30 May to 20 July 1970 and 9 March 1970.

5.  The applicant’s record shows his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 February 1970, for failing to obey a lawful general regulation.

6.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, there is a DD Form 214 on file that shows the applicant received a UD on 11 December 1971.  This document also shows that he completed a total of 1 year, 10 months and 17 days of creditable active military service and accrued 53 days of time lost due to being AWOL. 

7.  The applicant's DD Form 214 also shows he was separated under the provisions of Army Regulation 635-212, and that he was assigned a separation program number (SPN) of 28B, which confirms he was separated for unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).  

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations.

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an honorable discharge (HD) or general discharge (GD) under honorable conditions if warranted by the member's overall record of service; however, a UD was normally considered appropriate for members separating under these provisions.


10. Army Regulation 635-5-1 (Separation Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  The regulation in effect at the time of the applicant’s discharge stipulated that SPN 28B was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-212, by reason of unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).

11.  Army Regulation 635-200 (Personnel Separations) currently provides the Army's enlisted administrative separation policy:

   a.  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.

   b.  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.  The applicant contends his UD should be upgraded because he was 21 years old and unable to adjust to the military.  This claim is insufficient to warrant the requested relief.

2.  The applicant's record is void of a separation packet that contains the specific facts and circumstances surrounding his separation processing for his final period of active duty service.  However, the record contains a properly constituted DD Form 214 that confirms he was discharged under the provisions of Army Regulation 635-212 and that he was assigned a SPN of 28B, which confirms he was separated for unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities).  This document carries with it a presumption of government regularity in the discharge process.  In the absence of evidence to the contrary it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record clearly shows a disciplinary history that includes the applicant's acceptance of NJP for failing to obey a lawful order and he twice departed AWOL accruing 53 days of lost time.  This record of misconduct clearly diminished the overall quality of his service below that meriting the issuance of an HD or GD by the separation authority at the time of discharge, or an upgrade of his discharge at this late date.

5.  Additionally, there is no evidence that his youth and immaturity affected his ability to serve, or that personal problems impaired his ability to serve.  There is no evidence that the applicant was younger or any less mature than other Soldiers of his age who completed their military obligations.  There is also no evidence that he sought help through his chain of command for any personal problems.

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)                                         AR20100023125





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ABCMR Record of Proceedings (cont)                                         AR20100023125



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