IN THE CASE OF:	  

		BOARD DATE:	    6 December 2011

		DOCKET NUMBER:  AR20110013523 


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 undesirable discharge to a general discharge.

2.  The applicant makes no statement.

3.  The applicant provides no additional evidence.

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 1 April 1974, the applicant enlisted in the Regular Army for a period of 3 years.  He was trained in and awarded military occupational specialty 82C (Artillery Survey Specialist).  The highest rank/grade he attained while serving on active duty was private/pay grade E-2.

3.  On 10 June 1974, the applicant accepted nonjudicial punishment (NJP) for leaving his appointed place of duty without proper authority.

4.  On 21 October 1974, the applicant accepted NJP for being absent without leave from 18 to 21 October 1974.

5.  On 25 November 1974, the applicant accepted NJP for two incidents of failing to go at the prescribed time to his appointed place of duty.

6.  On 21 March 1975, the unit commander notified the applicant he was initiating separation action against him for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13, because of frequent incident of a discreditable nature.  The unit commander also stated that discharge for unsuitability was not deemed appropriate because the applicant's behavior was not due to an inability to satisfactorily perform within the meaning of suitability.  The commander added that the applicant was sent to the brigade for the purpose of receiving correctional training and treatment necessary to return to duty as a well-trained Soldier; however, the behavior resumed.  The applicant's actions demonstrated little desire for returning to duty.  The commander recommended a waiver of the requirements for further counseling and rehabilitation.

7.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  He waived his right to an administrative separation board, even in the event that an undesirable discharge was recommended.  The applicant also acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a less than an honorable discharge were issued to him.  He further understood that as the result of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.

8.  On 27 March 1975, the separation authority approved the applicant's separation for unfitness under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of an Undesirable Discharge Certificate.  On 28 March 1975, the applicant was discharged.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was separated under the provisions of Army Regulation 635-200, paragraph 13, by reason of unfitness.  He completed a total of 9 months and 4 days of active service during this period.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 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.  It provided for the separation of individuals for unfitness for frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

11.  Army Regulation 635-200, paragraph 3-7b, currently in effect 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his undesirable discharge was carefully considered and found to be insufficient in evidence.

2.  By regulation, commanders would separate a member under chapter 13, Army Regulation 635-200, when in the commander's judgment, the member would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

3.  The evidence of record confirms the applicant's separation processing for unfitness was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Further, the applicant's DD Form 214 documents no acts of valor or significant achievement warranting special recognition that would mitigate the applicant's actions.  Therefore, no basis has been established to support upgrading his undesirable discharge to a general discharge.

5.  In view of the foregoing, the applicant is not entitled to the 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 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)                                         AR20110013523



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ABCMR Record of Proceedings (cont)                                         AR20110013523



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