RECORD OF PROCEEDINGS


	IN THE CASE OF:	  	


	BOARD DATE:	  	22 SEPTEMBER 2005
	DOCKET NUMBER:  	AR20050001632 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Mr. Ronald DeNoia

Analyst

The following members, a quorum, were present:


Mr. James Anderholm

Chairperson

Mr. Bernard Ingold

Member

Mr. Michael Flynn

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his Under Other Than Honorable Conditions Discharge.

2.  The applicant states that his use of drugs was due to his age, availability, peer pressure and "just plain stupidity".  He also states that he has straightened out his life and wants to get the record straight.

3.  The applicant provides three letters of support from his famly, clergy and employer.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 17 May 1971.  The application submitted in this case is dated 24 January 2005.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant entered into the Army on 3 May 1968.  Upon completion of basic training and advanced individual training he was awarded the military occupation specialty (MOS) 71B (Clerk Typist).

4.  On 19 September 1968, nonjudicial punishment was imposed against the applicant for failing to go to his prescribed place of duty on 18 September 1968.  His punishment consisted of forfeiture of $15.00, restriction for 14 days and extra duty for 14 days.

5.  Headquarters, US Army Ryukyu Islands General Court-Martial Order Number 4, dated 27 January 1970, shows the applicant was tried before a General Court-Martial for stealing mail from fellow soldiers on 29 September 1969 and 2 October 1969.


6.  The applicant pled guilty and was found guilty of these charges.

7.  The military judge adjudged the following sentence on 7 January 1970:  Reduction to the grade of E-1, confinement at hard labor for 9 months, and forfeiture of $100.00 per month for 9 months.

8.  On 18 February 1971, the commanding officer of HHC, School Brigade, Fort Wolters, Texas recommended the applicant for separation under the provisions of AR 635-212.  The reasons cited for his recommendation were receiving an Article 15 on 19 September 1968, found guilty by a General Court-Martial on 7 January 1970, being the subject of CID report and witness statements alleging possession and illegal traffic of drugs, operating a US Government vehicle in a reckless manner and speeding excessively on a military reservation and being arrested and jailed for burglary and larceny in connection with recent thefts and burglaries in the local civilian community 

9.  On 16 March 1971, the applicant appeared before a board of officers. The board recommended that the applicant be discharged from the service because of unfitness and issued an Undesirable Discharge Certificate.

10.  On 13 May 1971 the commanding general approved the board's findings and recommendation.  On 17 May 1971, the applicant was discharged with an undesirable discharge, with a characterization of Under Other Than Honorable Conditions.

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

12.  Army Regulation 635-212 (Discharge-Unfitness and Unsuitability) in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 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; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  Army Regulation 635-200, paragraph 3-7, 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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights. 

2.  There is no evidence which shows that his discharge processing was flawed or otherwise improper.  The available records show that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Therefore, in the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and that the type of discharge and reason for separation were appropriate considering all the facts of the case.

3.  The applicant’s record of service from 3 May 1968 through 17 May 1971 included one Article 15, one general Court-Martial, and 137 days of lost time as a result of AWOL and confinement. 

4.  The letters of support submitted by the applicant essentially attests to the applicant's good character before and after his military service.  However, the applicant's pre and post-service conduct in this case does not mitigate his indiscipline while in the Army.  Therefore, these letters are insufficient as a basis for upgrading the applicant's characterization of service.

5.  As a result of the above facts, it is evident that his quality of service during his enlistment did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable characterization of service.

6.  Furthermore, the nature and extent of the applicant's undisciplined behavior and his record of judicial and nonjudicial punishment renders his service unsatisfactory.  Therefore he is not entitled to a general discharge.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 May 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 16 May 1974.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JA___  ___BI ___  ___MF __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.









2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____James Anderholm__________
          CHAIRPERSON




INDEX

CASE ID
AR20050001632
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19710517
DISCHARGE AUTHORITY
AR 635-212. . . . .  
DISCHARGE REASON
Unfitness
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0133.0000
2.

3.

4.

5.

6.