IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100027449 


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 his general discharge be upgraded to an honorable discharge.

2.  He states, in effect, that he was young and immature at the time.  He has been on the same job for over 20 years.  He is raising four kids by himself and he has never been in trouble.  He is in poor health, he has had three strokes, and he has diabetes.  He does not want a medical discharge; he just wants his discharge upgraded to honorable.

3.  He provides no additional evidence.

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 (RA) in pay grade E-1 on 29 October 1970, for 3 years.  On the date of his enlistment in the RA, he was 17 years of age.  He completed training and was awarded military occupational specialty 63J (Quartermaster Light Equipment Repairer).  

3.  On 2 August 1971, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 29 to 31 July 1971.

4.  He was promoted to pay grade E-4 on 16 November 1971.  He served in Vietnam from 1 February to 24 June 1972.

5.  On 2 October 1972, he again accepted NJP under Article 15, UCMJ, for being AWOL from 1 to 27 August 1972.  He was reduced to pay grade E-2 on 5 October 1972.

6.  A Report of Mental Status Evaluation, dated 5 February 1973, found his behavior to be normal, he was fully alert, and was fully oriented.  His mood was level, his thinking process was clear, and his thought content was normal.  He was found to be mentally responsible and able to distinguish right from wrong and adhere to the right.  He was found to meet the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

7.  On 5 February 1973, the applicant's unit commander notified the applicant of his intent to recommend him for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, due to unsuitability.

8.  On 5 February 1973, the applicant acknowledged the proposed separation action under the provisions of chapter 13, Army Regulation 635-200, after consulting with counsel.  He waived his right to have his case heard before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged that he understood he might be issued a general discharge.  He further acknowledged that he could be discharged under other than honorable conditions and furnished an undesirable discharge, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration.

9.  On 6 February 1973, he again accepted NJP under Article 15, UCMJ, for being AWOL from 5 to 27 January 1973.

10.  On 12 February 1973, the applicant's unit commander recommended the applicant's separation for unsuitability because of the applicant's undisciplined behavior, negative attitude towards the military, substandard appearance, and his inability to expand effort constructively rendered him unsuitable for further military service.  The unit commander stated the applicant had been given many second chances, but he could not and would not try to comply with Army standards.  He believed the applicant should be eliminated from the military for his own good and for the good of the Army.

11.  On 21 February 1973, the appropriate authority approved the applicant's discharge and specified the issuance of a general discharge.

12.  On 5 March 1973, he was discharged under the provisions of chapter 13, Army Regulation 635-200, in pay grade E-2, with a general discharge.  He was credited with completing 2 years, 2 months, and 6 days of active service.  He also had 51 days of lost time.

13.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the 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.

15.  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 contention that his youth impacted his ability to serve successfully is without merit.  He was 17 years of age when he enlisted in the RA.  He served from his enlistment date in October 1970 until August 1971 without incident.  There is no evidence he was any less mature than other Soldiers of the same age who served successfully and completed their term of service.  

2.  The applicant's unit commander recommended his separation for unsuitability due to his undisciplined behavior, negative attitude toward the military, substandard appearance, and his inability to expand effort constructively rendered him unsuitable for further military service.  His unit commander stated that he had been given many second chances, but he could not and would not try to comply with Army standards.  

3.  There is no evidence in his records and he has provided no evidence to show his discharge was unjust.  He has also not provided evidence sufficient to mitigate the character of his discharge.  He acknowledged he understood that he might be issued a general discharge.  The applicant's negative attitude towards the military and his substandard performance diminished the quality of his service below that meriting a fully honorable discharge.  

4.  In the absence of evidence to the contrary, it appears his discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons were appropriate considering the facts of the case.

5.  In view of the foregoing there is no basis for granting the 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)                                         AR20100027449



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ABCMR Record of Proceedings (cont)                                         AR20100027449



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