RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060010011 


	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 an honorable discharge or a general discharge. 

2.  The applicant essentially states that he was routed through the court system at age 17, and that he was a young father with no education and always in trouble.  He also states, in effect, that the courts opted to send him to the Army instead of prison.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 7 July 1972, the date of his discharge from the Regular Army.  The application submitted in this case is essentially dated 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 
22 March 1971.  He completed basic and advanced individual training and was awarded military occupational specialty 94B (Cook).  He was then assigned to Fort Benning, Georgia for what was his first and only permanent duty assignment.

4.  On 27 October 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for going absent without leave (AWOL) from 15 October 1971, and remaining AWOL until he returned on 18 October 1971.  His punishment consisted of reduction in rank from private first class/pay grade E-3 to private/pay grade E-2, and correctional custody for 30 days.


5.  On 27 January 1972, the applicant again accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on two occasions.  His punishment consisted of restriction for 14 days, and extra duty for 14 days.

6.  On 1 March 1972, the applicant was convicted by a special court-martial for going AWOL from 1 February 1972, and remaining AWOL until he returned on 
12 February 1972, and for failing to go at the time prescribed to his appointment place of duty.  His punishment consisted of confinement at hard labor for 
31 days, forfeiture of $100.00 a month for 1 month, and reduction in rank from private/pay grade E-2 to private/pay grade E-1.

7.  On 21 April 1972, the applicant was admitted to Martin Army Hospital, Fort Benning, Georgia, where he admitted to intravenous heroin use.  He was detoxified and discharged from the hospital on 25 April 1972.

8.  On 8 May 1972, the applicant was convicted by a special court-martial of going AWOL from 4 April 1972, and remaining AWOL until he returned on 12 April 1972, and for going AWOL from 14 April 1972, and remaining AWOL until he returned on 19 April 1972.  His punishment consisted of confinement at hard labor for 45 days.

9.  On 11 May 1972, a mental status evaluation was conducted on the applicant. The consulting medical officer concluded that the applicant’s behavior was normal, that he was fully alert and oriented, his thinking process was clear, and his thought content was normal.  The DA Form 3822-R (Report of Mental Status Evaluation) also shows, in pertinent part, that in the opinion of the consulting medical officer, the applicant had the mental capacity to understand and participate in the proceedings, and was mentally responsible.

10.  On or about 7 June 1972, the applicant’s company commander advised him that he was being recommended for separation from the United States Army under the provisions of Army Regulation 635-212, by reason of unfitness.  He was also advised of his right to a hearing before a board of officers, to waive this right and submit statements in his own behalf, to waive both of the above rights, and to be represented by counsel.

11.  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 elected not to submit a statement 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.  

12.  On 22 June 1972, the proper authority approved the applicant’s discharge, and directed that he be issued an Undesirable Discharge Certificate.  On 7 July 1972, the applicant was discharged accordingly.  The applicant’s DD Form 214 shows that he was discharged under the provisions of Army Regulation 635-212, and was furnished a DD Form 258A (Undesirable Discharge Certificate).  This document also shows that he had 128 days of lost time due to being AWOL and in confinement, and he was only credited with 11 months and 8 days of active duty service.

13.  On 19 October 1973, the Army Discharge Review Board (ADRB) denied the applicant’s petition to upgrade his discharge.  It was noted that in his application to the ADRB, he essentially stated that he was young and foolish, and listened to an Army recruiter tell him the Army would have been the best thing in the world for him, but that he found out differently.

14.  The applicant essentially stated that he was routed through the court system at age 17, and that he was a young father with no education and always in trouble.  He also stated, in effect, that the courts opted to send him to the Army instead of prison.  

15.  The applicant’s records show that he was 17 years old at the time of his enlistment; however, there is no evidence that he was forced by a court to enlist in the Army.  

16.  Army Regulation 635-212 (Enlisted Soldiers), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  This regulation stated, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  An undesirable discharge was normally considered appropriate.

17.  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.

18.  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.

19.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 
3-year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge or a general discharge.

2.  Although the applicant essentially contended that a court forced him into the Army, there is no evidence in the applicant’s records, and the applicant failed to provide any evidence to corroborate this contention.  Additionally, the applicant essentially stated that he enlisted in the Army because he listened to an Army recruiter tell him the Army would have been the best thing in the world for him.     

3.  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.  Evidence of record also confirms that the applicant’s 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 service shows that had 128 days of lost time due to AWOL and confinement, that he accepted NJP under Article 15 of the UCMJ on two occasions, was convicted by court-martial on two occasions, and abused illegal drugs.  Based on this record of indiscipline, the applicant’s service clearly 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.

7.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on or about 19 October 1973.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 18 October 1976.  However, 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

___WP __  ___PS __  __JP____  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.




_____William Powers_________
          CHAIRPERSON




INDEX

CASE ID
AR20060010011
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070313
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19730712
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.