BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100026370 


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, in effect, an upgrade of his general discharge to an honorable discharge.

2.  He states, in effect, he believes the agreement with The Judge Advocate Office on accepting the plea agreement for the chapter 13 discharge was in error. He was not sure of his rights.   

3.  He provides a copy of his General Discharge Certificate.

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 record shows he was inducted into the Army of the United States in pay grade E-1 on 1 August 1969.  He was honorably discharged on        5 August 1969 for the purpose of immediate enlistment in the Regular Army.  

3.  He enlisted in the Regular Army (RA) on 6 August 1969 for 3 years.  He completed training and he was awarded military occupational specialty 67Y (Helicopter Repairman).  He served in Vietnam from 19 February 1970 through 1 January 1971.  He was honorably discharged on 23 May 1971 for the purpose of immediate reenlistment. 

4.  He reenlisted in the RA in pay grade E-4 on 24 May 1971, for 6 years.  

5.  On 10 August 1971, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duties.

6.  On 24 September 1971, he was convicted by summary court-martial of being absent without leave (AWOL) from 1 to 13 September 1971 and from 14 to 20 September 1971.  He was sentenced to a reduction to pay grade E-1 (suspended for 180 days), extra duty for 45 days, and a forfeiture of $127.00 pay per month for 1 month.  The convening authority approved the sentence and ordered it duly executed on the same date.

7.  On 3 November 1973, he accepted nonjudicial punishment under Article 15 of the UCMJ for failing to go his appointed place of duty on 30 and 31 October 1971.

8.  He was again reported AWOL on 27 February 1974 and dropped from the rolls of his unit on 28 March 1974.  He returned to military control on 12 May 1974.

9.  He received counselings on 12, 18, and 24 July 1974 for being late for duty on several occasions, deterioration of his proficiency, his overall duty performance, and his virulent attitude towards the military.  He was also advised that unless there was an immediate improvement in his duty performance and his attitude, chapter 13 proceedings would be initiated requesting his immediate discharge.  He acknowledged receipt of all counselings.

10.  30 July 1974, the applicant's unit commander recommended the applicant be eliminated from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 13-5b(3), for unsuitability because of apathy.  The unit commander stated the applicant was assigned to that unit following a period of AWOL and pending disposition of said 
AWOL.  The applicant's conduct and efficiency were satisfactory until such time as he was notified of his upcoming trial by special court-martial.  At and since that time his conduct and efficiency had deteriorated to such a degree as to be detrimental to his co-workers.

11.  On 30 July 1974, the applicant's unit commander notified the applicant of his possible elimination from the service under the provisions of Army Regulation 635-200, paragraph 13-5b(3), for unsuitability.  The unit commander advised the applicant of his rights.  

12.  On 30 July 1974, after consulting with counsel, he acknowledged the proposed separation action.  He waived his rights and elected not to submit a statement in his own behalf.  He acknowledged he understood that he might be issued a discharge under honorable conditions (general) and the effects of such a discharge.  

13.  On 19 August 1974, he was convicted by special court-martial of AWOL from 27 February to 12 May 1974.  He was sentenced to confinement at hard labor for 3 months, a reduction to pay grade E-1, restriction for 2 months, and a forfeiture of $70.00 pay per month for 6 months.  

14.  On 21 August 1974, the convening authority approved the sentence and ordered it duly executed.  He was reduced to pay grade E-1 on 21 August 1974.

15.  On 15 August 1974, the appropriate authority approved his discharge and directed issuance of a General Discharge Certificate.

16.  He was discharged from active duty in pay grade E-1 on 27 August 1974, under the provisions of Army Regulation 635-200, paragraph 13-5b(3).  He was issued a General Discharge Certificate.  He was credited with completing 3 years and 2 days of net active service and 92 days of lost time during the period under review.

17.  There is no evidence he applied for a discharge upgrade to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

18.  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 13-5b(3) provided for the separation of individuals found to be unsuitable for further military service.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.
19.  Army Regulation 635-200, paragraph 3-7a stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and found to be without merit.  The evidence shows he was twice punished under Article 15 and he was convicted by a summary court-martial for two periods of AWOL.  His unit commander stated the applicant was assigned to that unit following a period of AWOL and pending disposition of said AWOL.  The applicant's conduct and efficiency were satisfactory until such time as he was notified of his upcoming trial by special court-martial.  At and since that time his conduct and efficiency had deteriorated to such a degree as to be detrimental to his co-workers. 

2.  He received counselings and was advised that unless there was an immediate improvement in his duty performance and his attitude, chapter 13 proceedings would be initiated requesting his immediate discharge.  He acknowledged receipt of all counselings.  Prior to his conviction by special court-martial for another period of AWOL, chapter 13 action was initiated against him and he was advised of his rights.  He was discharged on 27 August 1974 under the provisions of Army Regulation 635-200, paragraph 13-5b(3) for unsuitability.

3.  There is no evidence in his records and he has provided no evidence to show that his discharge was unjust or he was improperly advised of his rights.  He has also not provided evidence sufficient to mitigate the character of his discharge.  At the time separation action was initiated, he acknowledged that he might be issued a general discharge.  He elected not to submit a statement in his own behalf.  It appears his repeated unsatisfactory performance diminished the quality of his service below that meriting a fully honorable discharge.

4.  Without evidence, it appears his separation 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.

5.  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)                                         AR20100026370





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ABCMR Record of Proceedings (cont)                                         AR20100026370



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