IN THE CASE OF: BOARD DATE: 25 August 2011 DOCKET NUMBER: AR20110002819 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. 2. The applicant states he was not given a hearing and he was unjustly discharged. 3. The applicant provides no additional evidence 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. He enlisted in the Regular Army on 14 August 1969. He completed basic combat and advanced individual training and was awarded military occupational specialty 12A (Pioneer). 3. He accepted nonjudicial punishment (NJP) on: * 6 October 1969 for being absent without leave (AWOL) from on or about 3 to 5 October 1969 * 9 July 1970 for being AWOL from on or about 5 to 8 July 1970 * 25 February 1971 for failure to obey a lawful order from a commissioned officer and failure to obey a lawful order from a noncommissioned officer * 4 March 1971 for failure to go at the time prescribed to his appointed place of duty * 30 April 1971 for being absent from his place of duty 4. On 17 April 1971, he received a bar to reenlistment. 5. His separation processing package was not available for review. 6. On 21 July 1971, he was discharged under the provisions of Army Regulation 635-212 by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities with the issuance of an undesirable discharge. He completed 1 year, 11 months, and 3 days of active service. 7. Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. This regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. A discharge under other than honorable conditions was normally considered appropriate. However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge. 8. Army Regulation 635-200 (Personnel Separations) currently sets forth the basic authority for the separation of enlisted personnel. 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. 9. 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. DISCUSSION AND CONCLUSIONS: 1. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 2. He accepted NJP on five occasions and he had 5 days of lost time. His record of service clearly shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel and his service was not satisfactory. 3. Therefore, there is an insufficient basis to upgrade his undesirable discharge to either a general or honorable 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) AR20110002819 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110002819 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1