IN THE CASE OF:	  

		BOARD DATE:	    15 March 2010

		DOCKET NUMBER:  AR20100023971 


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 under other than honorable conditions discharge.

2.  The applicant states he has been an outstanding citizen since his discharge and was a Soldier until his breaking point after he encountered multiple deaths while on active duty.  He stated he served actively for 2 years, 9 months, and 2 days, just 2 1/2 months short of his 3-year commitment.  He was led to believe by his commander, first sergeant, and other noncommissioned officers that his requested discharge was an expeditious one.  He also stated he signed his discharge papers without understanding what was going on.

3.  The applicant provides 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 enlisted in the Regular Army on 20 June 1972 for a period of
3 years.  Records show he was 19 years, 2 months, and 11 days of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training he was awarded military occupational specialty 94B (Cook).  The highest rank/grade he attained was private (PV2)/E-2.

3.  The applicant received five nonjudical punishments (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), between 22 March 1973 and
30 January 1975 for offenses including being absent from his appointed place of duty (six specifications); failing to go at the time prescribed to his appointed place of duty (two specifications); and dereliction of duty (one specification).  

4.  On 29 January 1974, the applicant was barred from reenlistment for being absent from his place of duty on four separate occasions and dereliction of duty.

5.  On 15 May 1974, the applicant was reassigned for the purpose of a rehabilitative transfer outside the Division Support Command (DISCOM) due to his unsatisfactory performance and patterns of shirking.

6.  On 18 February 1975, the company commander notified the applicant that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unfitness.  The company commander stated the applicant had been assigned to his unit for approximately 9 months and during that period he has continuously shown himself to be a substandard Soldier.  He has been given every opportunity to better himself in the military but he does not have the initiative or the foresight to take advantage of any offered opportunity.  The company commander stated the applicant has been counseled on a daily basis on his job performance, appearance, and military bearing.  He is constantly involved in situations that require both punitive and nonpunitive disciplinary actions such as uniform violations, late for work, AWOL, and failing to support family members.  The applicant requires an excessive amount of supervision in any job he is assigned, to the point of it being a burden.  He does not respond to the best leadership and supervision the company has to offered, and he feels the energy should be directed toward someone more responsive.

7.  The applicant acknowledged receipt of the initial notification on the same day.

8.  On 26 February 1975, having been advised by consulting counsel of the basis for the contemplated separation action, the applicant waived consideration and personal appearance before a board of officers.  He acknowledged that he understood he may encounter substantial prejudice in civilian life if an under other than honorable conditions discharge is issued to him.  He also submitted a statement in his own behalf wherein he stated he thinks the Army is excellent for a man who could be a Soldier, but for a man who has problems with the military the personnel try to punish the individual for trying to get out the military to help himself.  The applicant further stated he thinks his personal rehabilitative potential showed excellent work.  He performed his job to the best of his abilities while it lasted.  When he felt himself conflicting with the Army he started being counseled, but no one started paperwork when his attitude was trying to change. He requested many times for a discharge.  He also felt that he was being made an example of because of his record.  He had asked for a discharge in both units and he was refused.  He also asked to be discharged in November 1974.  He has been in the Army for 32 months and thinks he should receive something better.

9.  On 4 March 1975, the battalion commander, having received the proposed separation action, interviewed the applicant and advised him of the effects of an undesirable discharge.  The applicant stated he was aware of such effects and all other implications of this type of discharge.  During the interview the applicant made it clear that if he were to remain in service he would only get into more trouble.  The commander further stated that since the applicant's rehabilitative transfer he had received three Article 15s.  He has continuously shirked his duties and disobeyed his superiors thereby causing considerable conflict within his unit.  The battalion commander recommended discharge from the military service.

10.  On 2 April 1975, the separation authority, a brigadier general, approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 13 for unfitness and directed the issuance of an Undesirable Discharge Certificate.

11.  On 14 April 1975, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(4) for an established pattern for shirking, with an undesirable discharge.  He completed 2 years, 9 months, and 10 days of total active service with 16 days of time lost.

12.  The applicant subsequently applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 2 April 1976, after careful consideration of his military records and all other available evidence, the ADRB determined that he was properly discharge and denied his request.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5a(4) provided for the separation of individuals for unfitness (an established pattern for shirking).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

	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 that his under other than honorable conditions discharge should be upgraded.  The applicant’s administrative discharge was accomplished in compliance with applicable regulations and his rights were fully protected throughout the separation process.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.  

2.  The applicant’s record of service, as evidenced by his multiple Article 15s, clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100023971



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ABCMR Record of Proceedings (cont)                                         AR20100023971



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