IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110016823 


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, in effect, an upgrade of his undesirable discharge (UD) to a general discharge.

2.  The applicant states his overall conduct and duty performance does not merit a UD.  He was treated unfairly due to the issuance of an improper and inequitable discharge.  He believes that he was betrayed by his commander and battalion headquarters.  He served 2 years and 7 months of his enlistment with only minor infractions.  The applicant further states he comes from a very patriotic family and that was the reason he joined the Army in the first place.  He does not want his children or grandchildren to think he was not a good person or a good American.  He finally states that he is proud to have served in the Armed Forces at a time when people of his age group were burning their draft cards and causing civil unrest in most communities.   

3.  The applicant provides the following documents in support of his application.

* Personal statement submitted in his own behalf, dated 8 July 2011
* DD Form 214 (Report of Separation from Active Duty)
* Orders of Ejection, dated 13 February 1974 
* Special Orders Number 40, dated 9 February 1974
* Letter of Appreciation, dated 8 January 1974, with two endorsements
* Three DA Forms 2627-1 (Record of Proceedings Under Article 15 Uniform Code of Military Justice (UCMJ)), dated 10 December 1972, 19 July 1973, and 27 December 1973
* Unit Orders Number 23, dated 26 December 1972
* Special Orders Number 18, dated 18 January 1973
* Bar to Reenlistment, dated 19 July 1973 
* Applicant's statement, dated 19 November 1973
* Revocation of Pass Privileges, dated 26 November 1973

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 8 July 1971, the applicant enlisted in the Regular Army for a period of 3 years.  He was trained in and awarded military occupational specialty 63C (Tracked Vehicle Mechanic).  The highest rank/grade he attained while serving on active duty was specialist/pay grade E-4.

3.  On 10 December 1972, the applicant accepted nonjudicial punishment (NJP) for failing to go at the prescribed time to his appointed place of duty.

4.  On 19 July 1973, the applicant accepted NJP for possession of marijuana in the hashish form.

5.  On 19 July 1973, a bar to reenlistment was initiated against the applicant.  On 3 August 1973, the applicant's bar to reenlistment was approved.

6.  On 15 November 1973, the applicant accepted NJP for leaving his appointed place of duty without proper authority.

7.  On 27 December 1973, the applicant accepted NJP for attempting to forcibly remove a cigarette vending machine from the wall of a German residence causing approximately $400.00 worth of damage to the vending machine. 

8.  On 18 January 1974, the unit commander notified the applicant he was initiating separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5a for unfitness due to frequent incidents of a discreditable nature and an established pattern of shirking.  The unit commander stated the reason for the action was the applicant’s substandard military appearance; he had no regard for his superiors or regulations governing the U.S. Army.  The commander recommended that the requirements for further counseling and rehabilitation be waived.

9.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and of its effects and of the rights available to him.  He waived his right to an administrative separation board, even in the event that a UD was recommended.  The applicant also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a less than honorable discharge (HD) were issued to him.  He acknowledged that he understood as the result of the issuance of a UD, he may 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.

10.  On 18 January 1974, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13-5a, for unfitness and directed the issuance of an Undesirable Discharge Certificate.  On 13 February 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he was separated under the provisions of Army Regulation 635-200, paragraph 13-5a, by reason of unfitness.  He completed a total of 2 years, 7 months, and 6 days of active service.

11.  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.

12.  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, a UD was normally issued.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.  

14.  Army Regulation 635-200, paragraph 3-7b of the same regulation provides that a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and the supporting documents he submitted with his application were carefully considered.  However, there is no evidence and the applicant did not present any evidence which shows the discharge he received in 1974 was unjust or unfair.

2.  The available evidence does show the applicant received four NJP’s, for numerous disciplinary actions.  These offenses were serious acts of misconduct which warranted his UD.

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

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 lack of performance.  Therefore, no basis has been established to support upgrading his 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 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)                                         AR20110016823



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ABCMR Record of Proceedings (cont)                                         AR20110016823



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