IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110003612 


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 general discharge be upgraded to honorable and correction of his DD Form 214 (Report of Separation from Active Duty) to show the spelling of his last name as "McL____."

2.  The applicant states an upgrade of his discharge would help provide more opportunities for him to improve his living situation and to become a contributing member of society.

3.  The applicant provides a copy of his DD Form 214.

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.  On 13 February 1973, the applicant enlisted in the Regular Army under the last name of "MacL____."  A review of his military records shows he used this spelling during his entire period of service, to include his signature on the DD Form 214 in question.

3.  On 6 July 1973, the applicant accepted nonjudicial punishment for failing to go to a company formation.

4.  On or about 26 July 1973, the applicant completed his initial training and was awarded military occupational specialty 91B (Medical Corpsman).  He then departed Fort Sam Houston, Texas, for duty at Fort Benning, Georgia, where he was to be enrolled in the Basic Airborne Course.

5.  On 12 August 1973, the applicant was absent without leave (AWOL).  He remained AWOL until on or about 2 January 1974.  On 11 March 1974, the applicant was convicted of AWOL by a special court-martial.  His sentence included 90 days confinement at hard labor.  He was released from confinement on or about 23 May 1974 and was subsequently assigned to Fort Campbell, Kentucky.

6.  On 11 March 1975, the commander notified the applicant of his intent to separate him from the service for unsuitability.  The commander cited the applicant's inability to adapt to the military, his constant late arrival for work, his poor personal appearance, his lack of dependability, and his unwillingness to perform in a manner befitting a Soldier in the U.S. Army.

7.  On 13 March 1975, the applicant consulted with counsel and elected not to make a statement in his own behalf.

8.  On 18 March 1975, the applicant's commander recommended his separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsuitability.  The commander stated the applicant had been counseled by his supervisors, first sergeant, and detachment and hospital commanders.  Further rehabilitation was not considered feasible because the applicant did not exhibit a desire to accept the responsibilities of being a Soldier.

9.  On 19 March 1975, the appropriate authority approved the recommendation and directed issuance of a DD Form 257A (General Discharge Certificate).

10.  Accordingly, he was discharged under honorable conditions on 26 March 1975.  He completed 1 year, 6 months, and 5 days of creditable active duty service and accrued 221 days of lost time due to AWOL and confinement.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Army Regulation 635-200, chapter 13 in effect at the time, applied to separation for unfitness and unsuitability.  Chapter 13 provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or a general discharge was issued as determined by the separation authority based on the individual's entire record.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to honorable because it would help provide him with more opportunities to improve his living situation and become a contributing member of society.  He further contends that his last name is spelled incorrectly on his DD Form 214.

2.  The evidence of record clearly shows the applicant entered, served, and was discharged under the same spelling of his last name as shown on his DD Form 214.  Furthermore, the applicant signed his name in the same manner.

3.  The applicant did not provided any documentation showing the spelling of the last name under which he served is incorrect or improper.

4.  The Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.

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

6.  The applicant has not provided any evidence or a sufficiently mitigating argument to warrant upgrade of his discharge.  His desire to improve his employment opportunities is not justification to upgrade his discharge.

7.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20110003612



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ABCMR Record of Proceedings (cont)                                         AR20110003612



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