BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100029700 


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 undesirable discharge.

2.  The applicant states he was not informed of his DD Form 258A (Undesirable Discharge Certificate) prior to his discharge.

3.  The applicant provides 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 on 10 November 1969.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  The applicant received non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on the following occasions:

* On 7 January 1971, for failing to go to the time prescribed his appointed place of duty on 7 January 1971
* On 17 May 1971, for failing to go to the time prescribed his appointed place of duty on 17 May 1971
* On 16 June 1971, for willfully disobeying a lawful order from a noncommissioned officer (NCO) and for being disrespectful in language toward the same NCO

4.  Special Orders Number 133, issued by Headquarters, 4th Battalion,
10th Infantry, dated 16 August 1971, adjusted the applicant's Basic Active Service Date (BASD) and Basic Pay Entry Date (BPED) from 10 November 1969 to 5 December 1969 by reason of 25 days of bad time.

5.  Special Orders Number 137, issued by the same headquarters, dated
23 August 1971, adjusted the applicant's BASD and BPED from 5 December 1969 to 8 December 1969 by reason of 3 days of bad time.

6.  Special Court-Martial Order Number 34, issued by the same headquarters, dated 1 September 1971, shows the applicant was convicted, pursuant to his plea, of being absent without leave (AWOL) from 19 July 1971 to 13 August 1971.

7.  The specific facts and circumstances surrounding his discharge are not available for review with this case; however, his record contains a DD Form 214 that shows he was discharged from the Army on 26 November 1971 in the rank/grade of private (PV1)/E-1 under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability).  He was assigned a separation program number (SPN) of 28B that refers to unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities.  He received a character of service of under conditions other than honorable and issuance of a DD Form 258A (Undesirable Discharge Certificate).  His DD Form 214 further shows he completed 1 year, 11 months, and 22 days of total active service during this period with time lost from 19 July 1971 to
13 August 1971.

8.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

10.  Army Regulation 636-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), governs the policies and procedures for the separation of enlisted personnel.  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.

11.  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’s record is void of the specific facts and circumstances that led to his discharge.  However, the evidence of record shows he had three instances of NJP, two instances of AWOL, and one instance of a court-martial.  It appears his chain of commander initiated separation action against him.  His record contains a DD Form 214 that shows he was discharged on 26 November 1971 under the provisions of Army Regulation 635-212 by reason of unfitness with a character of service of under conditions other than honorable and issuance of an Undesirable Discharge Certificate.

3.  Absent evidence to the contrary, it is presumed all requirements of law and regulation were met and his rights were presumably fully protected throughout the separation process.  It is also presumed his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

5.  In view of the foregoing, there is no basis for upgrading his undesirable discharge to either 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)                                         AR20100029700



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ABCMR Record of Proceedings (cont)                                         AR20100029700



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