BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100025853 


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 undesirable discharge (UD) to a general discharge.

2.  He states his discharge was too harsh.  His training and other duties were not taken into consideration when he was being processed for separation.

3.  He 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’s military records show he enlisted in the Regular Army in pay grade E-1 on 30 January 1973, for 3 years.  He completed training and was awarded military occupational specialty 64C (Motor Transportation Operator).  He served in Germany from 28 September 1973 through 19 November 1973.

3.  He accepted nonjudicial punished (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for the following:

* 20 February 1973 - for failing to obey a lawful order
* 04 April 1973 - wrongful possession of marijuana
* 18 June 1973 - for failing to obey a lawful order (not to leave his guard post and no sleeping while in the performance of duty)
* 16 October 1973 - for operating a vehicle in a reckless manner
* 28 December 1973 for failing to go to his appointed place of duty on 2 occasions and absenting himself from his unit
* 15 February 1974 – for absenting himself from his unit and failing to go to his appointed place of duty
* 20 February 1974 – for failing to obey a lawful order
* 22 March 1974 – for being negligent in the performance of his duties, breaking restriction, and absenting himself from his unit

4.  On 25 March 1974, the applicant’s unit commander recommended the applicant be discharged for unfitness in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 13.  The unit commander stated the applicant’s intentional shirking of his duties, failure to repair at the proper time, being absent without leave, and by behavior rendering him repeatedly as a subject to punitive actions gave much doubt for improvement.

5.  On 28 March 1974, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He acknowledged he understood that he might be issued a general discharge, under honorable conditions and the effects of such a discharge.  He further acknowledged the results of the issuance of an UD.  He elected not to submit a statement in his own behalf.

6.  On 1 April 1974, the applicant's intermediate commander recommended the applicant's separation be deferred pending further evaluation after a rehabilitative transfer.

7.  On 5 April 1974, he was reassigned to another unit on a rehabilitative transfer. 

8.  On 25 April 1974, he accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.

9.  On 1 May 1974, the applicant's unit commander recommended favorable consideration of the applicant's elimination.  The unit commander stated that since the applicant's assignment to the unit, he had been a totally substandard Soldier.  His performance of duty was characterized by frequent incidents of a discreditable nature with military authorities.  The unit commander recommended the applicant be discharged as soon as possible as his continued assignment would cause more severe disciplinary and morale problems within the unit.

10.  On 30 May 1974, the appropriate separation authority approved the applicant’s separation with a UD.

11.  He was discharged in pay grade E-1 on 31 May 1974 under the provisions of Army Regulation 635-200, paragraph 13-5a(1), and issued a UD Certificate.  He was credited with completing 1 year, 3 months, and 18 days active service and 17 days of lost time.

12.  On 10 March 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge.

13.  Army Regulation 635-200, then in effect, set forth the policy and prescribed the procedures for administrative separation of enlisted personnel.  Chapter 13 applied to separation for unfitness and unsuitability.  Paragraph 13-5a(1) provided for the separation of individuals for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  When separation for unfitness was warranted, a UD was issued by the separation authority.

14.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and found to be without merit.  The evidence shows he was punished under Article 15 on 7 occasions prior to a rehabilitative transfer.  His unit commander at the time stated the applicant’s intentional shirking of his duties, failure to repair at the proper time, being absent without leave, and by behavior rendering him repeatedly as a subject to punitive actions gave much doubt for improvement.  His intermediate commander recommended a rehabilitative transfer.  Upon his reassignment he was punished under Article 15.  His unit commander stated the applicant had been a totally substandard Soldier and recommended his immediate discharge.  

2.  There is no evidence in his records and he has provided no evidence to show that his discharge was unjust.  He has also not provided evidence sufficient to mitigate the character of his discharge.  At the time separation action was initiated, he was reassigned on a rehabilitative transfer.  His performance of duty was again characterized as substandard and it was recommended he be discharged as soon as possible.  He also acknowledged that he might be issued an UD.  It appears his repeated unsatisfactory performance diminished the quality of his service below that meriting a general discharge.

3.  Without evidence, it appears his discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons were appropriate considering all the facts of the case.

4.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100025853



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ABCMR Record of Proceedings (cont)                                         AR20100025853



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