IN THE CASE OF: BOARD DATE: 5 May 2009 DOCKET NUMBER: AR20090002939 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, in effect, that his undesirable discharge be upgraded to a general, under honorable conditions discharge. 2. The applicant states, in effect, he was 17 years old, young, and immature. He states it was 38 years ago and if he could do it over again, he would be retired. He further states he's been an honorable person since. 3. The applicant provides no additional documentary evidence in support of this 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's record shows he enlisted in the Regular Army on 26 July 1971. He completed basic combat training and was still in a trainee status at time of his discharge. 3. The applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions: 4 August 1971 for breaking reception center restriction; 8 September 1971 for misconduct; and 29 October 1971 for being absent without leave (AWOL). 4. On 3 November 1971, the applicant was referred for a mental health evaluation and advised he was being considered for elimination from the service for unfitness under Army Regulation 635-212 (Personnel Separations - Discharge for Unfitness and Unsuitability), paragraph 6a(1), frequent incidents of a discreditable nature with civil or military authorities. 5. On 8 November 1971, the applicant received a statement of counseling advising him that separation action was being contemplated for unfitness. The applicant's record shows he fully understood the ramifications of his type of discharge and voluntarily waived his right to counsel, an administrative separation board, and his right to the 48-hour waiting period. 6. On 23 November 1971, the applicant was discharged with a character of service of under conditions other than honorable and issued an Undesirable Discharge Certificate. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 3 months and 16 days of creditable active military service with 12 days of lost time due to AWOL. 7. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 8. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel. Paragraph 6a(1) of the regulation provided, in pertinent part, that an individual was 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. 9. Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), 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 request for a discharge upgrade from undesirable to general, under honorable conditions has been carefully considered and determined to be without merit. 2. Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors which would tend to jeopardize his rights. The type of discharge and reason for separation were appropriate considering all the facts of the case. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant indicated that he fully understood the ramifications of his type of discharge and voluntarily waived his right to counsel, an administrative separation board, and his right to the 48-hour waiting period. 3. The available evidence shows the applicant was punished under the UCMJ on three occasions. Based on the infractions of discipline shown in the record, the applicant's military service does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, he is not entitled to a change in his type of discharge. Therefore, it is concluded that the applicant's characterization of service and the reason for the applicant's discharge were both proper and equitable and accurately reflects his overall record of service. 4. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit any evidence that would satisfy this requirement. 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) AR20090002939 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090002939 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1