BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20110000141 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant offers no explanation or justification for his request for an upgrade of his discharge.

3.  The applicant provides no additional documents with his application.

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 Houston, TX on 8 June 1973 for a period of 3 years.  He completed his basic training at Fort Polk, LA and his 


advanced individual training as a supply clerk at Fort Ord, CA before being transferred to Fort Riley, KS on 13 October 1973 for his first and only duty assignment.

3.  On 26 July 1974, nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) was imposed against him for being absent without leave (AWOL) from 1 July to 23 July 1974.

4.  On 3 March 1975, NJP was imposed against him for selling military property from the Central Issue Facility.

5.  On 4 August 1975, NJP was imposed against him for disobeying a lawful order from a superior commissioned officer.

6.  On 20 August 1975, the applicant submitted a rebuttal to his Enlisted Evaluation Report (EER) in which he stated he did not agree with his rater’s evaluation and while he agreed his attitude was not what it should be, it was because he had requested discharge under Army Regulation 635-200,
chapter 13 over 3 weeks prior and nothing had been done and all he wanted was to get out of the Army.

7.  On 24 September 1975, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.

8.  The specific facts and circumstances surrounding the applicant’s administrative discharge are not contained in the available records.  However, his record does contain a duly-authenticated DD Form 214 (Report of Separation from Active Duty) which shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to his frequent involvement in incidents of a discreditable nature with civil or military authorities.  He was issued an Undesirable Discharge Certificate.  He completed 2 years, 7 months, and
14 days of total active service with 22 days of time lost due to AWOL.

9.  There is no evidence in the available record that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  On 29 October 1985, the applicant authorized the release of information from his military records to officials at the Brazos County, Texas Adult Probation Department.


11.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction; an established pattern of shirking; and/or an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

12.  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.

13.  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 administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized 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 overall record of service has been considered.  However, the repeated nature of his misconduct during his period of service is not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply does not rise to the level of an honorable or a general discharge.

4. In view of the foregoing, there is no basis for granting the applicant's requested relief.



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)                                         AR20110000141



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110000141



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1