IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110009210 


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 discharge.

2.  The applicant states he was sent out for training in a blizzard until he gave completely out and had a panic attack, which gave him mental problems.

3.  The applicant did not provided any additional documents in support of his request.

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, and 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 20 July 1972, the applicant enlisted in the Regular Army for a period of 
3 years.  He was trained in and awarded military occupational specialty 76S (Vehicle Material Supply Specialist).  The highest rank/grade he attained while serving on active duty was specialist /pay grade E-4.

3.  On 14 November 1973, the applicant was convicted by a special court-martial (SPCM) of unlawfully assaulting a fellow Soldier by striking him about the head with his feet.  He was sentenced to confinement at hard labor for 80 days, a reduction to pay grade E-1 and a forfeiture of $90.00 pay per month for 
3 months. 

4.  On 8 September 1975, the applicant was convicted by a SPCM of unlawfully striking a superior non commissioned officer in the face with his fist, for being absent without leave (AWOL) from 13 to 14 August 1975 and for dereliction in the performance of his duties.  He was sentenced to confinement at hard labor for 2 months, a forfeiture of $150.00 pay per month for 2 months and a reduction to pay grade E-1.   

5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain a DD Form 214 which shows that on 12 May 1975, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13 for unfitness, with an undesirable discharge, characterized as under conditions other than honorable.  It further shows that at the time of his discharge he completed 2 years, 10 months, and 29 day of total active service with 165 days of time lost due to AWOLs and confinement.

6.  On 7 November 1988, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it 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 general discharge was issued as determined by the separation authority based upon the individual’s entire record.

8.  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.

9.  Army Regulation 635-200, paragraph 3-7b, states 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.  The applicant contends that his undesirable discharge should be upgraded because he had mental problems due to being sent out for training in a blizzard was carefully considered and found to be without merit; there is no evidence in his available record and the applicant did not provide any evidence in support of his allegation. 

2.  The applicant’s military record shows he was convicted by two SPCM for two specifications of assault, for being AWOL and for dereliction in the performance of his duties.  He also had two periods of confinement.

3.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or a general discharge.

4.  Although his separation packet is not available for review, in the absence of evidence to the contrary it appears his administrative separation was accomplished in compliance with applicable regulations with no indication of 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 available facts of the case.

5.  In view of the foregoing, there is insufficient evidence to grant 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)                                         AR20110009210



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ABCMR Record of Proceedings (cont)                                         AR20110009210



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