RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060009697 


	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 general discharge be upgraded to an honorable discharge. 

2.  The applicant essentially states that he was only 18 years old, and too young to know a good thing when he saw it.  He also states that his son is now in the Army and has served two tours in Iraq, and that he wishes he could get back in now and serve his country side by side with him.   

3.  The applicant provides no additional evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 9 December 1976, 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 
3 December 1975.  He completed basic and advanced individual training (AIT) and was awarded military occupational specialty 52B (Power Generation Equipment Operator/Mechanic).

4.  On 10 May 1976, while still in AIT, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully having in his possession, with intent to distribute, marijuana.  His punishment consisted of forfeiture of $200.00 pay per month for
2 months.

5.  The applicant was then reassigned to Fort Bragg, North Carolina, but failed to arrive on his reporting date of 21 May 1976, and his duty status was changed from assigned-not-joined to absent without leave (AWOL) effective 21 May 1976. 6.  The applicant remained AWOL until he reported to Fort Bragg, North Carolina on 11 June 1976.

7.  Between 13 August 1976 and 13 September 1976, the applicant accepted NJP under Article 15 of the UCMJ on two occasions.  His offenses included failing to go at the time prescribed to his appointed place of duty on three occasions.  Collectively, his punishment consisted of extra duty for 15 days, and placement in the 1st Corps Support Command Correctional Custody Facility for 30 days, effective 15 September 1976.  

8.  On 8 November 1976, the applicant’s commander essentially informed him that he was initiating action to discharge him from the United States Army under the provisions of Army Regulation 635-200 (Enlisted Personnel), Paragraph 5-37, for failure to maintain acceptable standards for retention in accordance with the Expeditious Discharge Program (EDP).  The reasons for his proposed actions were the applicant’s poor attitude, lack of motivation, lack of self-discipline, inability to accept instructions and directions, and his clearly substandard performance.  The applicant’s company commander also essentially informed him that he intended to recommend that he receive a General Discharge Certificate and, as a result, he must consult with counsel at the Office of the Staff Judge Advocate.  He also informed the applicant that if he was furnished a general discharge, he could expect to encounter substantial prejudice in civilian life.  The applicant voluntarily consented to discharge on that date.    

9.  On 15 November 1976, the applicant consulted with legal counsel, and subsequently acknowledged that he had been advised by counsel of the basis for the contemplated action to accomplish his separation under the Expeditious Discharge Program, Chapter 5, Army Regulation 635-200.  He elected not to submit a statement on his own behalf, and 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.  

10.  On 18 November 1976, the proper authority approved the discharge of the applicant from the service under the provisions of the paragraph 5-37, Army Regulation 635-200, and directed that he receive a General Discharge Certificate.  

11.  On 29 November 1976, the applicant again accepted NJP under Article 15 of the UCMJ for twice failing to go at the prescribed time to his appointed place of duty.  His punishment consisted of forfeiture of $208.00 per month for 1 month, and restriction to the company area, place of worship, and dining facility for a period of 60 days unless accompanied by an escort.
12.  On 9 December 1976, the applicant was discharged accordingly.  The 
DD Form 214 (Report of Separation From Active Duty) that was issued to him at the time of his discharge shows that he was discharged in the rank of private/pay grade E-2, and served 11 months and 16 days of active duty service, and had 
21 days of lost time.  Item 9c (Authority and Reason) of his DD Form 214 has, in pertinent part, an entry of “[Paragraph] 5-37 AR 635-200.”

13.  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.

14.  The applicant essentially stated that his discharge should be upgraded because he was too young to know a good thing when he saw it.  Records show that the applicant was only 18 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

15.  Army Regulation 635-200, 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.

16.  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.  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 general discharge should be upgraded to an honorable discharge. 

2.  While the applicant essentially contended that he was only 18 years old, and too young to know a good thing when he saw it, there is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Evidence of record shows that the applicant accepted NJP under Article 15 of the UCMJ on four occasions.  Given the high number of instances of misconduct in less than 1 year, the applicant failed to provide evidence which proves that the discharge, which he consented to, 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.  Evidence of record also confirms that his discharge processing was accomplished in accordance with applicable regulations and that his discharge accurately reflects his overall record of service.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case, and the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 December 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
8 December 1979.  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
AR20060009697
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19761209
DISCHARGE AUTHORITY
AR 635-200, PARAGRAPH 5-37 
DISCHARGE REASON
EDP
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.9224.0000
2.

3.

4.

5.

6.