IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100029059 


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 other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he was young and did not understand how his discharge would affect him in the future.

3.  The applicant provides a copy of 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 enlisted in the Regular Army on 15 November 1972 at the age of 17 years, 8 months, and 3 days.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  The applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 10 occasions for the offenses indicated:

   a.  on 28 January 1973, for failing to go to his appointed place of duty; 

   b.  on 1 May 1973, for being absent from his unit; 
   
   c.  on 30 November 1973, for willfully disobeying a lawful order; 
   
   d.  on 18 March 1974, for being absent from his unit; 
   
   e.  on 9 April and on 7 July 1975, for disobeying a lawful order; 
   
   f.  on 18 August 1975, for wrongfully possessing marijuana residue; 
   
   g.  on 8 September and on 26 October 1975, for willfully disobeying a lawful command; and

   h.  on 6 November 1975, for wrongfully possessing marijuana.

4.  The applicant was counseled by his chain of command on 14 separate occasions for his unsatisfactory attitude and duty performance.

5.  On 6 October 1975, the applicant was notified of initiation of separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13 for unfitness.  

6.  On 7 October 1975, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.  

7.  On 11 November 1975, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 13, and directed that he be issued a discharge under other than honorable conditions.



8.  On 24 November 1975, the applicant was discharged accordingly.  The
DD Form 214 he was issued confirms he was separated under other than honorable conditions and he completed 3 years and 7 days of creditable active military service with 3 days of lost time.

9.  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.

10.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable, under other than honorable conditions discharge was normally considered appropriate. 

11.  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.

12.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant was over 18 years of age at the time he committed the majority of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.  

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.
4.  Based on his record of indiscipline which includes 10 punishments under Article 15 and 14 counseling statements, the applicant's service clearly did not meet the standard of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable or a general discharge.

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)                                         AR20100029059



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ABCMR Record of Proceedings (cont)                                         AR20100029059



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