IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110013191 


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 under other than honorable conditions discharge to a general under honorable conditions discharge.

2.  The applicant states:

	a.  when he was assigned to Fort Riley, Kansas, he was ordered to drive a truck onto a boat and accidently broke the boat.  He was afraid of getting into trouble so he ran away.  When he came back he received punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).

	b.  he was hurt during physical training (PT).  He took a blow to his right side which caused enlargement of a vein on the right side of his heart.  He did not get a profile.  He stayed in the Army even though he had chest pain.

	c.  he was a good Soldier.  He was promoted more than once while he was in the Army.  

3.  The applicant provides:

* 2 DD Forms 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* 2 Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim), and 1 continuation
* a medical form
* various correspondence from the VA
* 3 VA Forms 21-4142 (Authorization and Consent to Release Information to the VA)
* DD Form 214 (Report of Separation from Active Duty)

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 28 March 1974.  He completed basic and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).  The highest grade he attained while serving on active duty was private first class/E-3.

3.  His records contain the following periods of lost time:

* 8 July 1974 - 9 July 1974, absent without leave (AWOL)
* 30 September 1974 - 2 October 1974, AWOL
* 15 October 1974 - 16 October 1974, AWOL
* 1 November 1974 - 4 November 1974, AWOL
* 18 November 1974 - 7 January 1975, AWOL/dropped from rolls (DFR)
* 20 January 1975 - 22 January 1975, AWOL
* 18 March 1975 - 27 May 1975, confined by military authorities
* 24 June 1975 - 30 June 1975, AWOL
* 1 August 1975 - 4 August 1975, AWOL

4.  His records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ as follows:

* on 11 October 1974, for being AWOL during the period 30 September 1974 through 2 October 1974
* on 22 July 1975, for being AWOL during the period 24 June 1975 through 30 June 1975
* on 28 August 1975, for being absent without authority on 31 July 1975, and AWOL during the period 1 August 1975 through 4 August 1975
* on 21 January 1976, for failure to report to his appointed place of duty on 
12 January 1976, and leaving his appointed place of duty without authority on 13 January 1976
* on 16 April 1976, for failure to report to his appointed place of duty on        4 April 1976
* on 26 April 1976, for failure to report to his appointed place of duty on     17 April 1976
* on 9 August 1976, for using disrespectful language toward a non-commissioned officer on 20 July 1976

5.  On 18 March 1975, he was convicted by a special court-martial of two specifications of absenting himself from his unit without authority and two specifications of willfully disobeying a lawful order from his first sergeant, as a superior noncommissioned officer.  The court sentenced him to confinement at hard labor for four months, forfeiture of $100.00 for four months, and a reduction to the grade of private/E-1.  A convening authority approved his sentence on 
7 April 1975.

6.  The records contain statements from three Soldiers, dated 13 December 1976,  stating that the applicant was scheduled to appear before a chapter 13 board on 15 December 1976, and confirming that he was aware of this appointment.

7.  His records contain a DA Form 4137 (Property Report), which shows that a military police officer found items that appeared to be marijuana cigarettes and marijuana seeds in his unsecured wall locker.

8.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his records contain a DD Form 214 which shows he was discharged from active duty in pay grade E-1 on 10 February 1977 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, and issued an under other than honorable conditions discharge.  He was credited with completing 2 years, 8 months, and 3 days of net active service, and he had 72 days of lost time.

9.  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 unfitness whose record evidenced frequent incidents of a discreditable nature with civil or military authorities.  An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in individual's case.  The type of discharge will be directed by the convening authority.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) provides for the separation of enlisted personnel.  It states in paragraph 3-7b, 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 under conditions other than honorable to a general under honorable conditions discharge was carefully considered and determined to be without merit.

2.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, he was issued a DD Form 214 that shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200.

3.  In the absence of evidence to the contrary, the discharge proceedings are presumed to have been conducted in accordance with law and regulations applicable at the time and the character of the discharge is presumable commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service appear to be both proper and equitable.  

4.  His records reveal a history of AWOL, NJP under the provisions of Article 15 of the UCMJ, and one special court-martial.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  He has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  Therefore, he is not entitled to a general under 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)                                         AR20110013191



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ABCMR Record of Proceedings (cont)                                         AR20110013191



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