IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100030469 


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 an honorable or at least a general discharge.

2.  The applicant states, in effect, that when he joined the Army it was the first time he had ever been away from home and he was pretty homesick.  He goes on to state that he fought it off by making friends and then his friends began to leave when their time was up he heard that other Soldiers were getting out simply by asking their company commander to be discharged.  He continues by stating that it was the biggest mistake he ever made by not finishing his tour and he has regretted it ever since.  He also states that he was never informed that his discharge would be under other than honorable conditions or he would not have accepted it. 

3.  The applicant provides a two-page handwritten letter explaining his application, a copy of his enlistment contract and a copy of his Personnel Qualification Record (DA Form 2-1).

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 Atlanta, Georgia on 23 July 1974 for a period of 3 years, assignment to the 4th Infantry Division at Fort Carson, Colorado and training as an artillery surveyor.  

3.  He completed his basic training at Fort Jackson, South Carolina and his advanced individual training at Fort Sill, Oklahoma before being transferred to Fort Carson on 15 December 1974.  He was assigned to the 1st Battalion, 29th Artillery Regiment. 

4.  On 22 May 1975 nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 13 May to 15 May 1975.

5.  On 20 January 1976 NJP was imposed against him for two specifications of failure to go to his place of duty.

6.  On 18 February 1976 NJP was imposed against him for three specifications of failure to go to his place of duty.

7.  On 9 March 1976 the applicant was transferred to the 2d Battalion, 20th Artillery Regiment as a rehabilitative transfer. 

8.  On 8 April 1976 NJP was imposed against him for two specifications of failure to go to his place of duty.

9.  On 3 May 1976 NJP was imposed against him for disobeying a lawful order from a superior noncommissioned officer (NCO) and for being AWOL from 21 to  23 April 1976.

10.  On 10 May 1976 the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for unfitness based on his frequent involvement in incidents of a discreditable nature with military authorities.  The commander advised him that his discharge may be under other than honorable conditions (undesirable discharge).

11.  On 12 May 1976 the applicant submitted a statement regarding his administrative elimination and indicated that he had been read his rights and was making the statement of his own free will.  He stated that he did not like the Army and never should have joined it in the first place because it was too much hassle and he could not adjust to it.  He went on to state that another rehab transfer would not do any good because his attitude towards the Army was so bad and it did not matter to him what kind of discharge he was given as long as he gets out, as he believed that he could get a job regardless of what kind of discharge he received.

12.  On 27 May 1976, after consulting with counsel, he waived all of his rights and elected not to submit any additional statements in his own behalf.

13.  On 25 June 1976 the appropriate authority (a major general) approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

14.  Accordingly, he was discharged under other than honorable conditions on 7 July 1976 under the provisions of Army Regulation 635-200, paragraph         13-5a(1) for unfitness due to his frequent involvement in incidents of a discreditable nature with military authorities.  He had served 1 year, 11 months and 29 days of active service and had 6 days of lost time due to AWOL.

15.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. 

16.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for separating enlisted personnel for unfitness.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and military authorities, commission of a serious offense, conviction by civil authorities, desertion or absence without leave, homosexual acts and use and/or possession of a controlled substance.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

17.  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.

18.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant’s contentions and supporting documents have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when considering the repeated nature of his offenses during such a short period of service and his otherwise undistinguished record of service.  His service simply did not rise to the level of an under honorable or honorable conditions 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)                                         AR20100030469





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ABCMR Record of Proceedings (cont)                                         AR20100030469



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