IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100027935 


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 under honorable conditions (general) discharge to a fully honorable discharge.

2.  The applicant states he was never afforded any help or given legal advice.

3.  The applicant 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 records show he enlisted in the Regular Army for a period of 3 years on 21 August 1973 and held military occupational specialty 36C (Lineman).  
3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 21 February 1975, for being absent without leave (AWOL) from 21 to 27 January 1975
* on 6 August 1975, for failing to go at the time prescribed to his appointed place of duty and being found drunk on duty

4.  On 4 November 1975, he was convicted by a special court-martial of one specification of being found drunk while on duty, one specification of disobeying a lawful order, and one specification of disrespecting a noncommissioned officer. The court sentenced him to confinement at hard labor for 75 days, a forfeiture of $50.00 pay for 3 months, and a reduction to the lowest enlisted grade.  The convening authority approved his sentence on 1 December 1975.

5.  On 6 February 1976, the applicant's immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to unsuitability.  Specifically, the immediate commander cited the applicant's unsatisfactory conduct and efficiency, defective attitude, and lack of motivation or aptitude to become a productive Soldier.  He had been counseled on numerous occasions to no avail.  All attempts to rehabilitate him were met with negative results.  

6.  On 6 February 1976, the applicant acknowledged he had been notified of the pending separation action against him.  He consulted with counsel and he was advised of the basis for the contemplated action to separate him under the provisions of chapter 13 of Army Regulation 635-200, the rights available to him, and the effect of any action taken by him in waiving those rights.  The applicant waived consideration of his case by an administrative separation board and elected not to submit a statement on his own behalf.  

7.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He acknowledged he understood in the event of the issuance of an undesirable discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and may encounter substantial prejudice in civilian life.

8.  On 6 February 1976, his immediate commander initiated elimination action against him under the provisions of chapter 13 of Army Regulation 635-200 due to unsuitability.  The immediate commander requested a waiver of any further requirements for counseling or rehabilitative transfer because prior attempts had failed.

9.  His chain of command recommended approval of the request for discharge.

10.  On 9 February 1976, the separation authority approved the applicant's discharge under the provisions of chapter 13 of Army Regulation 635-200 and ordered that the applicant be issued a General Discharge Certificate.  Accordingly, the applicant was discharged on 12 February 1976. 

11.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with a General Discharge Certificate.  He had completed 2 years, 3 months, and 20 days of creditable active military service and he had 62 days of lost time.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

13.  Army Regulation 635-200, chapter 13, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general under honorable conditions or an honorable discharge was considered appropriate.

14.  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.  

15.  Army Regulation 635-200, paragraph 3-7a, states 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's records reveal a history of misconduct which includes one instance of a court-martial, two instances of NJP, and multiple negative counseling for various infractions.  He was provided with multiple opportunities for rehabilitation by various members of his chain of command but failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

2.  The evidence of record shows his separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

3.  Contrary to his argument that he was not provided with any help or legal advice, the evidence of record shows he was provided with multiple opportunities for rehabilitation but he did not respond positively.  Additionally, upon initiation of separation action against him, he consulted with legal counsel and he was advised of his rights. 

4.  He has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  Therefore, there is insufficient evidence to grant him the requested relief in this case.

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)                                         AR20100027935



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ABCMR Record of Proceedings (cont)                                         AR20100027935



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