IN THE CASE OF:	  

		BOARD DATE:  7 August 2012

		DOCKET NUMBER:  AR20120003040 


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 upgrade of his undesirable discharge for the period ending 7 April 1975 to an honorable or a general discharge.

2.  The applicant states the whole time during his discharge processing he was told he would receive a general discharge.  He further states he received an honorable discharge on 19 February 1970 and he does not believe his whole time in the Army was characterized by unfitness.

3.  The applicant provides no documentary evidence 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, 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 initially enlisted in the Regular Army on 19 June 1969.  He was trained in and awarded military occupational specialty (MOS) 67N (UH-1 Helicopter Repairman).  He served for 8 months and 1 day until 19 February 1970, at which time he was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 he was issued shows he earned the National Defense Service Medal during the period covered by the DD Form 214.

3.  On 20 February 1970, the applicant reenlisted for 6 years and began the period of service under review.  His record confirms a disciplinary history that includes:

* a special court-martial (SPCM) conviction, in July 1971, for two specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) for two separate periods of being absent without leave (AWOL)
* his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on five separate occasions between 19 January 1971 and 12 March 1975

4.  The unit commander notified the applicant he was initiating action to separate the applicant under the provisions of chapter 13, Army Regulation 635-200, by reason of unfitness because of adverse habits and traits of character manifested by repeated periods of AWOL and habitual shirking.  The unit commander advised the applicant he had the right to present his case before a board of officers; the rights to submit statements in his own behalf; and the right to be represented by qualified counsel.

5.  The applicant acknowledged he was advised by legal counsel of the basis for and his rights in connection with the contemplated separation action for unfitness.  He further acknowledged his understanding that as a result of receiving an undesirable discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life based on receipt of an undesirable discharge.

6.  On 18 March 1975, the unit commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness with an undesirable discharge.

7.  On 31 March 1975, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness and directed he receive an Undesirable Discharge Certificate and be reduced to the rank/grade of private (PV1)/E-1.

8.  On 7 April 1975, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness with issuance of an Undesirable Discharge Certificate.  It further shows he completed 4 years,
5 months, and 13 days of total active service with 430 days of time lost due to AWOL and confinement.

9.  There is no evidence of record and the applicant did not provide any evidence that indicates he was told by anyone that he would receive a general discharge.

10.  On 7 April 1981, after carefully considering the applicant’s entire military record and all available evidence, the Army Discharge Review Board (ADRB) determined the applicant’s discharge was proper and equitable and voted unanimously to deny the applicant’s petition to upgrade his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13, in effect at the time, provided for the separation of members for misconduct.  Members separated for misconduct normally received an undesirable discharge.  A general or an honorable discharge could be issued by the separation authority if warranted by the member's overall record of service.

	b.  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.

	c.  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 request to upgrade his discharge to an honorable or a general discharge because he was told the whole time during his discharge processing that he would receive a general discharge has been carefully considered.  However, the evidence of record confirms the applicant acknowledged the possibility of receiving an undesirable discharge during his consultation with legal counsel.
2.  The applicant's separation processing 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.

3.  The applicant's record reveals a significant disciplinary history that includes his acceptance of NJP on five separate occasions and an SPCM conviction.  His record of service did not support the issuance of an honorable or a general discharge at the time of discharge and it does not support an upgrade now.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20120003040



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ABCMR Record of Proceedings (cont)                                         AR20120003040



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