IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100026011 


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 general discharge to an honorable discharge.

2.  The applicant states that his discharge should be upgraded because his brother was deployed to Vietnam with the 101st Airborne Division.  He was with the 82nd Airborne Division and his unit was on alert.  He did not go to Vietnam because his brother was already there and because he could not go to Vietnam, he had no desire to continue in the service.  He went through the training but he was not allowed to be deployed.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 30 June 1971 for a period of
2 years.  He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.

3.  On 22 October 1971, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 4 to 18 October 1971.

4.  On 25 May 1972, the applicant was convicted by a special court-martial of being AWOL from 23 February 1972 until 29 March 1972.  He was sentenced to confinement at hard labor for 1 month, forfeiture of $40.00 pay per month for 
3 months, and reduction to private (PV1)/E-1.

5.  On 5 June 1972, the applicant received NJP for failing to go at the prescribed time prescribed to his appointed place of duty.

6.  On 12 July 1972, the applicant received NJP for failing to repair and for failing to go at the time prescribed to his appointed place of duty.

7.  On 21 July 1972, the applicant received a Certificate of Unsuitability for Reenlistment.  The unit commander’s stated reason for the bar to reenlistment was the applicant’s habitual misconduct and he considered the applicant to be a substandard Soldier.  On the same day the applicant acknowledged that he read and understood the allegations made by the unit commander and elected not to make submit a statement in his own behalf.

8.  On 21 July 1972, the Certificate of Unsuitability for Reenlistment was approved by the appropriate authority.

9.  On 10 August 1972, a Report of Mental Status Evaluation found that the applicant had the mental capacity to understand and participate in board proceedings and met retention standards.

10.  The facts and circumstances pertaining to the applicant's discharge proceedings are not available for review.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) of record indicates the 

applicant was discharged on 27 November 1972, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) by reason of the Qualitative Management Program (QMP), with a separation program number (SPN) of 21U - failure to demonstrate adequate potential for promotion.  He was issued a General Discharge Certificate.  He completed 1 year, 3 months, and 3 days of total active service.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 600-200 (Enlisted Personnel Management) set forth policy and prescribed procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to (1) enhance quality of the career enlisted force, (2) selectively retain the best qualified Soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive Soldiers, and (4) encourage Soldiers to maintain their eligibility for further service.  Therefore, all enlisted personnel must establish their eligibility to remain in the Army by continually demonstrating their efficiency and developing their potential for further service.

13.  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.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and found to be insufficient in merit.  

2.  The available evidence does not include a copy of the applicant's separation packet with the specific facts and circumstances surrounding his final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization for the applicant's discharge.  Therefore, government regularity in the discharge process is presumed.

3.  The evidence of record documents no acts of valor or significant achievement on the part of the applicant.  However, it does confirm a disciplinary history that includes his acceptance of NJP on three separate occasions, his conviction by a special court-martial, and his bar from reenlistment.  His record clearly did not support the issuance of an honorable discharge by the separation authority at the time of his discharge and does not support an upgrade at this late date.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  In view of the above, 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)                                         AR20100026011



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ABCMR Record of Proceedings (cont)                                         AR20100026011



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