BOARD DATE:	  5 December 2013

		DOCKET NUMBER:  AR20130007437 


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 honorable.

2.  The applicant states his discharge was unjust because he had talked to an inspector general and was waiting for paperwork from the United States that would have given him a general, under honorable conditions discharge.  He contends that an incident occurred that resulted in his undesirable discharge.

3.  The applicant provides no additional documentation.

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 21 April 1969, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 76R (Missile Repair Parts Specialist).

3.  On 11 September 1969, the applicant departed the United States for duty in the Federal Republic of Germany (FRG).  He accepted nonjudicial punishment (NJP) on:

	a.  19 November 1969, for being disorderly and willfully destroying military property;

	b.  21 January 1970, for disobeying a lawful order and being absent from his appointed place of duty;

	c.  5 February 1970, for failing to go to his appointed place of duty at the prescribed time;

	d.  3 April 1970, for missing bed check; and

	e.  10 June 1970, for stealing merchandise from a radio store and unlawfully carrying a concealed weapon (switchblade knife).

4.  On 7 August 1970, the applicant's commander notified him that he had initiated elimination proceedings against him under the provisions of Army Regulation 635-212 due to unfitness.

5.  On 7 August 1970, the applicant consulted with counsel and waived consideration of his case by a board of officers, waived representation by counsel, and did not elect to submit a statement in his own behalf.

6.  On 7 August 1970, the applicant's commander recommended him for separation due to unfitness under the provisions of Army Regulation 635-212.  The commander stated the applicant had been apprehended by the German police and the military police for larceny, carrying a switchblade knife, suspicion of drug possession, helping a German National over the fence of Nelson Barracks, and carrying a 15-inch butcher knife.  The commander also stated the applicant had been convicted by a special court-martial which had concluded that same day, 7 August 1970.  He had pleaded guilty to three charges: absence without leave (AWOL), failure to obey, and larceny.  The commander requested a waiver of rehabilitation.

7.  On 1 October 1970, the appropriate authority approved the recommendation for discharge and directed that he be discharged due to unfitness and issued DD Form 258A (Undesirable Discharge Certificate).

8.  On 19 October 1970, the applicant was discharged under conditions other than honorable.  He had completed 1 year and 5 months of creditable active duty service.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided that members were subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Personnel Separations):

	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 (emphasis added), 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 contends that his discharge should be upgraded because it was unjust.  He argues that he was to get a general, under honorable conditions discharge until an incident occurred that resulted in his undesirable discharge.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant has not provided sufficient argument or convincing evidence showing that his discharge was unjust and should be upgraded to either honorable or general under honorable conditions.

5.  In view of the above, the applicant’s request should be denied.

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)                                         AR20130007437





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ABCMR Record of Proceedings (cont)                                         AR20130007437



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