IN THE CASE OF:	  

		BOARD DATE:  1 November 2012

		DOCKET NUMBER:  AR20120007894 


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 an honorable discharge.

2.  He states he enlisted for 3 years in the U.S. Army.  He was only 3 months short of his contracted period when he was discharged for an incident of returning late for duty.  He was also experiencing marital problems (going through a divorce) when he accepted his discharge.

3.  He provides his DD Form 214 (Report of Separation from Active Duty).

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 enlisted in the Regular Army on 21 December 1973 for a period of 3 years.  Upon completion of basic and advanced individual training, he was awarded military occupational specialty 05E (Radio Operator).

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice, on nine occasions for the following offenses:

* failing to go at the time prescribed to his appointed place of duty on 29 August 1974, 2 November 1974, 10 January 1975, 13 January 1975, 30 January 1975, 14 April 1975, 16 June 1975, 17 June 1975, and 28 January 1976
* failing to obey a lawful order on 29 August, 29 October 1974, and 31 October 1974)
* being absent without leave (AWOL) from 8-11 August 1975
* disobeying a lawful command

4.  His discharge packet is not available for review.  However, his DD Form 214 shows he was discharged under other than honorable conditions on 17 September 1976 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, paragraph 13-5a(1), by reason of frequent incidents of a discreditable nature with civil or military authorities.  He completed 2 years, 8 months, and 25 days total active military service with 3 days of lost time.  He was issued an Undesirable Discharge Certificate.

5.  There is no evidence the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

6.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.

7.  Army Regulation 635-200, paragraph 3-7a, states 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.

8.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  However, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  He contends he was only 3 months short of his contracted period when he was discharged for an incident of returning late for duty.  However, his service record shows he received nine Article 15's for failing to go (nine times), failing to obey a lawful order (three times), AWOL (3 days), and disobeying a lawful command.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  He also contends he was experiencing marital problems at that time.  However, his personal family problems are not sufficiently mitigating to warrant an upgrade of his discharge.

4.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as under other than honorable conditions.

5.  There is no evidence of record which indicates the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's 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)                                         AR20120007894



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ABCMR Record of Proceedings (cont)                                         AR20120007894



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