RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060009566 


	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.



	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, in effect, that his undesirable discharge be upgraded to a general discharge 

2.  The applicant essentially states that his original discharge was foisted upon him by a self-serving first sergeant who gave him bad advice.  He also states, in effect, that he wanted to go to Vietnam, but was told he could not go, so he decided he did not need to be in the Army.  He continues by essentially stating that his first sergeant told him to go absent without leave (AWOL) and that he would get the applicant out of the Army with all of his benefits intact.

3.  The applicant provides six letters of support; a Certificate of License to preach the gospel; two Certificates of Ordination showing that he is an ordained minister; a diploma showing he completed a 1-year ministerial training; and a letter from the Chief, Support Division, Army Review Boards Agency, St. Louis, Missouri in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 15 January 1971, the date of his discharge from the Regular Army.  The application submitted in this case is dated 26 June 2006.

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’s records show that he enlisted in the Regular Army on 9 April 1969.  He completed basic and advanced individual training and was awarded military occupational specialty 76A (Armorer/Unit Supply Specialist).  He was then assigned to Fort Benning, Georgia for his initial permanent duty assignment, and served with the 546th Medical Company (Clearing).  



4.  On 27 January 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) on 19 January 1970, and remaining AWOL until on or about 23 January 1970.  His punishment consisted of reduction in rank from private first class/pay grade E-3 to private/pay grade E-2 and restriction for 
14 days.

5.  On or about 30 March 1970, the applicant was reassigned to Fort Bragg, North Carolina, where he served with Headquarters and Headquarters Company, 160th Engineer Company.

6.  Item 33 (Appointments and Reductions) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows, in pertinent part, that he was reduced in rank a second time, from private/pay grade E-2 to private/pay grade E-1, on 
4 May 1970.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Expiration of Term of Service [ETS]) also shows that he went AWOL again from 3 to 9 April 1970.  

7.  On 18 May 1970, the applicant again accepted NJP under Article 15 of the UCMJ for going AWOL on 27 and 28 April 1970, and for going AWOL from 5 May 1970 to 17 May 1970.  His punishment consisted of forfeiture of $21.00 per month for 1 month.

8.  The applicant went AWOL again on 10 July 1970.  On 10 August 1970, he was dropped from the rolls of his unit and classified a deserter.  He returned to military control on 17 November 1970.  

9.  On 20 November 1970, the applicant was notified by his unit commander that he was being recommended for discharge under the provisions of Army Regulation 635-212, by reason of unfitness.  

10.  On 27 November 1970, the applicant was found guilty of being AWOL from 10 July 1970 to 16 November 1970 by a special court-martial.  His sentence included a forfeiture of $50.00 per month for 1 month and confinement at hard labor for 4 months, which was suspended for 6 months.

11.  On 30 November 1970, a psychiatric evaluation was conducted on the applicant, which concluded that he was mentally responsible to distinguish right from wrong and adhere to the right.  The evaluation also stated that he had the mental capacity to understand and participate in the board proceedings, and had 

no disqualifying mental or physical disease or defect sufficient to warrant discharge through medical channels.  The applicant was psychiatrically cleared for any administrative or disciplinary action, and it was recommended that he be separated from the service under the provisions of Army Regulation 635-212.

12.  On 11 December 1970, the applicant consulted legal counsel and was advised of the basis of the contemplated action to separate him for unfitness.  Subsequent to counseling, the applicant completed his election of rights by waiving consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to submit a statement of rebuttal in his own behalf.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.  

13.  Although the complete paperwork surrounding his discharge is not in his military records, it is clear that the proper authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness.  On 
15 January 1971, the applicant was discharged accordingly.  His DD Form 214 shows that he was issued an Undesirable Discharge Certificate.  It also shows that he had 166 days of lost time.  

14.  In his application, the applicant essentially stated that his original discharge was foisted upon him by a self-serving first sergeant who gave him bad advice.  He also stated, in effect, that he wanted to go to Vietnam, but was told he could not go, so he decided he did not need to be in the Army.  He continued by essentially stating that his first sergeant told him to go AWOL and that he would get the applicant out of the army with all of his benefits intact.  However, there is no evidence in his military records which shows that he submitted any request to volunteer for an assignment in Vietnam.  He also did not provide any evidence to corroborate his assertion that a first sergeant gave him bad advice.  It was presumed that as the applicant went AWOL multiple times at Fort Bragg, North Carolina that the first sergeant the applicant is speaking about was there.  However, it was noted that the applicant had already gone AWOL one time prior to being assigned to his unit at Fort Bragg, North Carolina.

15.  The applicant provides six letters supporting his request.  These letters essentially state that the applicant is a good citizen with good moral qualities, and that he deserves a second change.  It was noted that two of the letters indicated that the applicant had developed a drug abuse problem while in the Army, and that one of these letters essentially stated that he was discharged for drug abuse. These letters of support also stated, in effect, that the applicant found his faith, and that his moral and spiritual character had undergone a complete transformation.

16.  The applicant also provided a Certificate of License to preach the gospel, and two Certificates of Ordination showing that he is an ordained minister.  He also provided a diploma showing he completed a 1-year ministerial training.  All four of this documents are dated between August 1997 and August 1999.

17.  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.

18.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

19.  Army Regulation 635-200 (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 (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.

20.  Army Regulation 635-200, paragraph 3-7b, also 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 contends that his undesirable discharge should be upgraded to a general discharge.

2.  The letters of support, as well as the applicant’s contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

3.  Evidence of record shows that the applicant accepted NJP under Article 15 of the UCMJ on two occasions for being AWOL, and was convicted by a special court-martial for being AWOL from 10 July 1970 to 16 November 1970.  He was also reduced in rank on two occasions.  Given the number of instances of misconduct, the applicant failed to provide evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

4.  The applicant’s record of indiscipline 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 either a general or an honorable discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 January 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
14 January 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

___MM__  __JM ___  __QS ___  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.




______Mark Manning_______
          CHAIRPERSON




INDEX

CASE ID
AR20060009566
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19710115
DISCHARGE AUTHORITY
AR 635-212 
DISCHARGE REASON
UNFITNESS
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.6400.0000
2.

3.

4.

5.

6.