IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100028036 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he should have been discharged under honorable conditions because he was never in any kind of trouble until he got a new commanding officer (CO) and he did not see eye-to-eye with him.  He goes on to state that the CO asked him what he thought of him and he told him.  The next thing he knew he was being released from the Army with no court-martial or hearing.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 in Baltimore, Maryland on 
28 February 1970 for a period of 3 years.  He completed his basic training at Fort Dix, New Jersey and was transferred to Fort Devens, Massachusetts for training as a supplyman.

3.  On 8 July 1970 nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his place of duty and reporting to the first sergeant in an unshaven condition. 

4.  On 24 November 1970 the applicant’s commander initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-212 for unfitness due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He cited as the basis for his recommendation the applicant’s record of NJP, that he had been found guilty by civil authorities of “Using a motor vehicle without authority” on 20 August 1970, that he had been tried by civil authorities on charges of conspiracy and larceny on 24 September 1970, that he had admitted to taking an air filter from another Soldier’s car, and that he had been confined twice by civil authorities.

5.  After consulting with counsel, the applicant waived all of his rights, which included consideration and appearance before a board of officers.  He also elected not to submit a statement in his own behalf.

6.  The appropriate authority (a brigadier general) approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

7.  Accordingly, he was discharged under other than honorable conditions on 14 December 1970 under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil and military authorities.  He had served 9 months and 3 days of active service and had 21 days of lost time due to confinement by civil authorities.

8.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-212, in effect, at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors, which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted.  However, the offenses committed by the applicant were too numerous and too serious and his overall record of service is too undistinguished for equitable relief to be appropriate.  His service simply does not rise to the level of under honorable conditions.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100028036





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ABCMR Record of Proceedings (cont)                                         AR20100028036



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