IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100024709 


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 be upgraded to a general discharge. 

2.  The applicant states:

* He had two Article 15s for being absent without leave (AWOL) for a total of 26 days
* He received one Article 15 because his mother was sick and he went to see her in the hospital and he received the other Article 15 because he had a car accident and was late returning to his unit 
* He did not receive a court-martial
* He was a good Soldier
* He served over 2 years
* He paid for his mistakes and learned from them
* He was young and had no experience
* It was a racial period of time and many Soldiers were getting chaptered out, discharged, and demoted in rank

3.  The applicant provides:

* Progress Note, dated 1 October 2010
* 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 was born on 1 June 1955.  He enlisted in the Regular Army on 9 August 1972 for a period of 4 years.  He completed his training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  Between 23 February 1973 and 19 September 1974, nonjudicial punishment (NJP) was imposed against the applicant on seven separate occasions for various infractions which included drunk and disorderly conduct, possessing marijuana, being AWOL, and assault.

4.  A bar to reenlistment was imposed against the applicant on 22 April 1974.

5.  On 3 October 1974, he was notified of his pending separation action under the provisions of chapter 13, Army Regulation 635-200 (Enlisted Separations) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities. 

6.  On 4 October 1974, he consulted with counsel and waived consideration of his case by a board of officers.  He acknowledged he might receive an undesirable discharge and as the result of the issuance of an undesirable discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life.  He elected to submit a statement on his behalf.  In summary, he stated:

* It is not the Army he has an attitude towards it is the people he worked under and with that made the Army so bad
* He did not think he could go to another unit and really do right because they were going to have people just like the people who were trying to put him out of the Army
* He did not like the type of discharge they were giving him but it did not make any difference 

7.  On 31 October 1974, the separation authority approved the recommendation for separation and directed the issuance of an undesirable discharge.

8.  He was discharged on 8 November 1974 with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He completed 2 years, 2 months, and 5 days of total active service with 26 days of lost time.  

9.  On 23 August 1977, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.     

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  

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.  Age is not a sufficiently mitigating factor.  Although he was age 17 when he enlisted he successfully completed his training and he was awarded MOS 11B.  

2.  There is no evidence of record which shows the applicant was a victim of racial discrimination.

3.  He contends he had 2 Article 15s.  However, the available evidence shows he had seven NJPs during his enlistment.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

6.  His record of service included a bar to reenlistment, seven NJPs, and 26 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

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)                                         AR20100024709



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ABCMR Record of Proceedings (cont)                                         AR20100024709



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