IN THE CASE OF:	  

		BOARD DATE:	  10 September 2013

		DOCKET NUMBER:  AR20130002358 


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 undesirable discharge be upgraded to a more favorable discharge that will afford him benefits.

2.  The applicant states that he was discharged due to being absent without leave (AWOL) a few times.  He goes on to state that he was on guard duty in the maintenance park and three black men jumped the fence and raped him.  He also states that he borrowed $25.00 from a so-called friend and it ended up costing him about $800.00.  He continues by stating that the so-called friend would come to his room with some of his goons looking for more money and kick the people in his room out and five minutes later he would be found on the floor.  He concludes by stating that he has gone through numerous therapy sessions and in-house mental institutions due this being on his mind and has never been able to talk about it due to breakdowns.    

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.  The applicant enlisted in the Regular Army on 7 July 1972.  He was advanced to the pay grade of E-4 on 1 March 1974.

3.  On 22 January 1975, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 23 January 1975 for a period of           6 years. 

4.  During the period from February to December 1975, nonjudicial punishment was imposed against him on at least three occasions for failure to go to his place of duty and two periods of being AWOL.

5.  During the period from July to November 1975, he was counseled monthly regarding his failure to pay his excessive debts, writing bad checks to the post exchange, and his involvement in fights related to his excessive debts and failure to pay them.

6.  On 20 November 1975, his platoon leader authored a statement indicating that he had counseled the applicant regarding his debts and indicated that the applicant had been beaten several times due to his failure to pay his debts and each time the applicant stated he would try, but he remained apathetic because despite the aid of his superiors in trying to help him budget his pay, he remains in and increases his debt.  He saw no other solution than separation from the service.

7.  On 8 December 1975, his company commander counseled him regarding his excessive debts, writing numerous bad checks to the Post Exchange, his loss of several sets of field gear, two occasions of being AWOL, and his lack of concern for liquidating his debts.  

8.  On 10 December 1975, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 for 
unfitness.  He cited as the basis for his recommendation that the applicant had caused an undue administrative burden on the unit by losing three complete sets of TA-50, he was constantly missing from his place of duty, he required constant supervision to accomplish the simplest of task, and he had incurred numerous debts with his peers, military banking facility, and other financial corporations.  Additionally, he had written numerous bad checks while being fully aware of his financial status.

9.  After consulting with defense counsel the applicant elected to submit a statement in his own behalf whereas he asserted that he should be given a general discharge because his garrison and field duty performance were at a high standard at all times, he always did what he was told, and he accomplished every task given to the best of his ability.

10.  On 26 January 1976, the appropriate authority (a major general) approved the recommendation for discharge and directed the applicant be issued an Undesirable Discharge Certificate.

11.  Accordingly, on 13 February 1976, he was discharged with an undesirable discharge, under the provisions of Army Regulation 635-200, chapter 13, for unfitness.  He had served 3 years and 7 months of total active service with 7 days of time lost due to AWOL.

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

13.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction; an established pattern of shirking; and/or an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

	a.  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.

	b.  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 violations or 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 and overall record of service have been considered.  However, the repeated nature of his misconduct during his service is not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply does not rise to the level of an honorable or a general discharge.

4.  Additionally, the Board does not upgrade discharges simply for the purpose of qualifying individuals for benefits.  Therefore, there appears to be no basis for granting his request for an upgrade of his 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 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)                                         AR20130002358





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ABCMR Record of Proceedings (cont)                                         AR20130002358



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