IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100025300 


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 upgrade of his undesirable discharge.

2.  The applicant states that he had a lot of problems at home back then and his mother even tried to get him a hardship discharge.  He also states that since his discharge he has been a highly productive citizen and he has fathered two responsible children, of which one of them has served his country in military service.  He continues by stating that he has taken the time to educate himself and he has become an exemplary leader in his chosen profession.  He also states that he volunteers in his community and he believes that he has turned his life around.  However, his discharge has stunted his professional growth.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of his college diploma and transcript, and 25 other documents related to training he has completed. 

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 20 October 1953 and he enlisted in the Regular Army in Jacksonville, FL on 30 November 1971 for a period of 3 years and training as an armor reconnaissance specialist.  He was transferred to Fort Jackson, SC to undergo his basic training. 

3.  On 1 February 1972, nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), was imposed against him for being absent from his unit and place of duty.

4.  On 22 February 1972, he was transferred to Fort Knox, KY to undergo his advanced individual training (AIT).  He completed his AIT and he was awarded military occupational specialty 11D (armor reconnaissance specialist).  He was transferred to Schweinfurt, Germany on 30 May 1972 for assignment to a cavalry troop as a scout observer.

5.  During the period of 7 September 1972 to 26 January 1973, NJP was imposed against the applicant on four occasions for offenses consisting of:

* Disobeying lawful orders from superior noncommissioned officers (NCO)
* Leaving his sentinel post without being relieved

6.  On 2 March 1973, he was transferred to an armor company for duty as a scout observer.  On 13 and 15 March 1973, NJP was imposed against him for wrongfully possessing marijuana and sleeping on his guard post.

7.  On 1 May 1973, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unfitness due to his frequent involvement in incidents of a discreditable nature with military authorities.

8.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

9.  On 22 June 1973, the appropriate authority (a major general) approved the recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate.
10.  Accordingly, he was discharged on 2 July 1973 under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for unfitness due to his involvement in frequent incidents of a discreditable nature with military authorities.  He had served 1 year, 7 months, and 3 days of total active service

11.  On 25 October 1974, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB denied his appeal on 31 January 1975.

12.  He again applied to the ADRB on 11 August 1981 and contended at that time that he was upset because his parents were getting divorced and he could not obtain a leave to go home, so he started using drugs to cope with his problems.  He also stated that the Army's drug prevention and control program was not effective.  The applicant was granted a personal appearance before the ADRB traveling panel in St. Petersburg, FL on 19 April 1982.  On 6 May 1982, after reviewing all of the evidence and testimony, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted to deny his request.

13.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction; an established pattern of shirking; and/or an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

14.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant's contentions, supporting documents, and overall record of service have been considered.  However, the repeated nature of his misconduct during his short period of service is not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply does not rise to the level of a general discharge.

4.  While the applicant is to be commended for his post-service accomplishments, that in itself is not sufficient to warrant an upgrade of his discharge.  Additionally, discharges are not normally upgraded for the purposes of improving employment prospects.

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.

6.  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)                                         AR20100025300



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ABCMR Record of Proceedings (cont)                                         AR20100025300



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