BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120005556 


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 (UD) to a general discharge or an honorable discharge.

2.  The applicant states his discharge should be upgraded because of the emotional stress he was going through.

3.  The applicant provides no additional documents in support of 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 15 November 1973, the applicant enlisted in the Regular Army for a period of 3 years.  He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).
3.  On 20 June 1974, the applicant received nonjudicial punishment (NJP) for failure to go at the prescribed time to his appointed place of duty.

4.  On 6 August 1974, the applicant received NJP for being absent without leave (AWOL) from 13 to 24 July 1974.

5.  On 22 October 1974, the applicant received NJP for stealing a movie camera valued of $50.00.

6.  On 21 January 1975, the applicant received NJP for being AWOL from 18 to 19 January 1975.

7.  On 18 February 1975, the applicant received NJP for breaking restriction.

8.  On 24 March 1975, the applicant received NJP for being disrespectful in language toward his superior noncommissioned. 

9.  On 2 April 1975, a Report of Mental Status Evaluation indicated the applicant had no significant mental illness.  The applicant was found to be mentally responsible; able to distinguish right from wrong; able to adhere to the right; had the mental capacity to understand and participate in board proceedings; and he met retention standards.    

10.  On 3 April 1975, 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 an established pattern of shirking.  The unit commander stated the reason for the action was the applicant’s numerous violations ranging from stealing to breaking restriction.  

11.  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.  The applicant requested to appear before a board of officers.  The unit commander approved the applicant’s request.

12.  On 3 April 1975, the unit commander recommended that the applicant be required to appear before a board of officers.  The applicant appeared with counsel and he testified in his own behalf.  The board transcript is missing from his record.  

13.  On 5 June 1975, the board of officers found the applicant undesirable for further retention in the military service because of unfitness and recommended an undesirable discharge. 
14.  On 28 July 1975, the commanding general 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 7 August 1975, the applicant was discharged.  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 
1 year, 6 months, and 26 days of active service.

15.  On 7 April 1992, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

16.  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.

17.  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.  

18.  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 were carefully considered.  However, there is no evidence and the applicant did not present any evidence which shows the discharge he received in 1975 was unjust or unfair.

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

3.  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.  

4.  Further, the applicant's record 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)                                         AR20120005556



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005556



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1