BOARD DATE: 13 April 2011
DOCKET NUMBER: AR20100024810
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 that his general discharge be upgraded to an honorable discharge.
2. The applicant states that he did not know of the procedures to upgrade his discharge and he has never held a job because he has been incarcerated for life.
3. The applicant provides no additional documents with 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 applicants 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 applicants 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 7 July 1972 for a period of 3 years. He was transferred to Fort Dix, New Jersey to undergo his basic training.
3. The applicant went absent without leave (AWOL) from 9 August to 13 August 1972, 6 September to 3 October 1972, 11 October to 27 October 1972, and from
24 January to 30 January 1973.
4. On 21 February 1973, the applicant, represented by counsel, appeared before a board of officers that was convened to determine if the applicant should be discharged from the service under the provisions of Army Regulation 635-200, chapter 13 for unsuitability due to apathy, defective attitudes, and inability to expend effort constructively.
5. After reviewing the applicants training records, available evidence, and testimony, the board of officers determined the applicant was unsuitable for further service and recommended that he be issued a General Discharge Certificate.
6. On 15 March 1973, the appropriate authority approved the findings and recommendation and directed that the applicant be issued a General Discharge Certificate.
7. Accordingly, he was discharged under honorable conditions at Fort Dix on 11 April 1973 under the provisions of Army Regulation 635-200, chapter 13 due to unsuitability due to apathy, defective attitudes, and inability to expend effort constructively. He had served 7 months and 8 days of active service and he was still in a trainee status (he had not completed basic training).
8. There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations. Furthermore, the applicant was incarcerated when he applied to this Board.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. An individual could be separated if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. A discharge under honorable conditions is 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 members 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.
DISCUSSION AND CONCLUSIONS:
1. The applicants administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicants rights.
2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.
3. The applicants contentions have been noted; however, they are not sufficiently mitigating considering his undistinguished record of service during such a short period of time and lack of mitigating circumstances. Accordingly, his service simply does not rise to the level of a fully honorable 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) AR20100024810
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