BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20120000679 


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 discharge under other than honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states that he was having lots of medical problems with cysts and he was often unable to participate in unit activities.  He got depressed and discouraged and stopped showing up.

3.  The applicant provides no additional documents with his application.

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 April 1973, the applicant enlisted in the Regular Army in Montgomery, Alabama for a period of 4 years, assignment to Fort Hood, Texas, and a cash enlistment bonus.  He completed basic training at Fort Ord, California and advanced individual training as a light weapons infantryman at Fort Polk, Louisiana before being transferred to Fort Hood for his first duty assignment.  He was advanced to the pay grade of E-4 on 6 June 1974.

3.  On 16 November 1974, he was transferred to Korea and on 30 March 1975 he was honorably discharged for immediate reenlistment.  He had served 1 year, 11 months, and 18 days of active service.  On 31 March 1975, he reenlisted for a period of 6 years and a selective reenlistment bonus (SRB). 

4.  During the period between 12 May and 30 July 1975 nonjudicial punishment (NJP) was imposed against him on three separate occasions for failure to go to his appointed place of duty and for assaulting another Soldier.

5.  On 9 February 1976, he departed Korea and was transferred to Fort Carson, Colorado with a report date of 15 March 1976.  He did not report as ordered and he was carried in an absent without leave (AWOL) status until he surrendered to military authorities at Fort Carson on 14 April 1976.  On 21 April 1976, NJP was imposed against him for this offense.

6.  During the period between 8 June 1976 and 3 February 1977 NJP was imposed against him on three occasions for assaulting another Soldier with his fists, failure to go to his place of duty, and being AWOL 2 days.

7.  The applicant went AWOL from 23 to 30 May 1977 and on 8 June 1977; NJP was imposed against him for these offenses.

8.  The applicant went AWOL from 16 to 20 June 1977 and on 27 June 1977; NJP was imposed against him for these offenses.

9.  The applicant went AWOL from 1 to 10 July 1977 and on 28 July 1977; NJP was imposed against him for these offense.

10.  On 11 August 1977, the applicant’s commander notified the applicant that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 13-12 for unfitness due to frequent involvement in incidents of a discreditable nature with military authorities.

11.  On 12 August 1977, after being afforded the opportunity to consult with defense counsel the applicant waived all of his rights.

12.  The applicant’s commander recommended that the applicant be discharged on 16 August 1977.  

13.  The appropriate authority (a major general) approved the recommendation for discharge on 9 September 1977 and directed that he be discharged under other than honorable conditions.

14.  Accordingly, on 21 September 1977, he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for unfitness due to his involvement in frequent incidents of a discreditable nature with military authorities with the issuance of an under other than honorable conditions discharge.  He had served 4 years, 5 months, and 9 days of active service and he had 53 days of lost time due to being AWOL. 

15.  There is no evidence in the available records to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 established policy and procedures for separating personnel for unfitness.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  A discharge under other than honorable conditions was normally considered appropriate.

17.  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.

18.  Army Regulation 635-200, paragraph 3-7b, provides that 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating when compared to his repeated acts of misconduct and his undistinguished record of service.

4.  Accordingly, his overall record of service does not rise even to the level of a general discharge (under honorable conditions) when considering his repeated acts of misconduct and substandard performance during the period in question.

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)                                         AR20120000679



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ABCMR Record of Proceedings (cont)                                         AR20120000679



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