RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060010202 


	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. 

2.  The applicant essentially states that he made a mistake 40 years ago when he was 17 years old and not very responsible, and thought that he could do as he pleased.  He also states that he went absent without leave (AWOL), and was court-martialed and separated with an undesirable discharge, but did not know at the time what this was going to do to him for the rest of his life.  Additionally, he essentially states that he worked for the same company for most of the last 
30 years until the company went out of business, and feels as though he is a good citizen and a real benefit to the community where he lives.  He further states, in effect, that he does not know what else to say other than he is sorry for what he did, and asks that he be forgiven and granted a change in the status of his discharge. 

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 29 September 1967, the date of his discharge from the Regular Army.  The application submitted in this case is dated 4 July 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 military records show that he enlisted in the Regular Army on 
3 May 1966.  He completed basic and advanced individual training (AIT) and was awarded military occupational specialty 72B (Communications Center Specialist). While in AIT, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for going AWOL from 
1 September 1966 to 5 September 1966, and for going AWOL from 23 October 

1966 to 24 October 1966.  Collectively, his punishment consisted of forfeiture of $43.00 per month for 2 months, restriction for 59 days, and extra duty for 59 days.

4.  In November 1966, the applicant was reassigned to Fort McPherson, Georgia for what would be his first and only permanent duty assignment.

5.  Between 25 January 1967 and 7 March 1967, the applicant accepted NJP under Article 15 of the UCMJ on two more occasions for going AWOL from 
9 January 1967 to 10 January 1967, and failing to go at the time prescribed to his appointment place of duty.  Collectively, his punishment consisted of reduction in rank from private first class/pay grade E-3 to private/pay grade E-2, restriction for 21 days, and extra duty for 21 days. 

6.  On 2 May 1967, the applicant was convicted by a special court-martial for going AWOL from 3 April 1967 to 11 April 1967.  His punishment consisted of forfeiture of $65.00 per month for 1 month.  

7.  On 23 August 1967, the applicant was convicted by a special court-martial for going AWOL from 15 May 1967 to 15 August 1967.  His punishment consisted of confinement at hard labor for 6 months, and forfeiture of $50.00 per month for
6 months.  On 29 September 1967, the unexecuted portion of this sentence was remitted.

8.  On 5 September 1967, a mental health examination was conducted on the applicant.  The medical officer determined that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

9.  On 7 September 1967, the applicant’s commanding officer notified the applicant that he was being recommended for discharge from the Army under the provisions of Army Regulation 635-212 for 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.

10.  The applicant consulted with 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.  

11.  On 25 September 1967, the proper authority approved the applicant’s discharge, and directed that he be issued an Undesirable Discharge Certificate.  On 29 September 1967, 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 with an DD Form 258A (Undesirable Discharge Certificate).  This document also shows that he had 
151 days of lost time due to AWOL and confinement, and was only credited with 
11 months and 26 days of active duty service.

12.  On 4 April 1977, the Department of Defense (DoD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DoD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

13.  On 19 October 1977, the Army Discharge Review Board denied upgrading the applicant’s discharge under the provisions of the DoD SDRP.

14.  On 1 June 1979, the Army Discharge Review Board denied the applicant’s appeal to have his discharge upgraded.

15.  The applicant essentially stated that he made a mistake 40 years ago when he was 17 years old.  The applicant’s military records show that he was 17 years old at the time he entered active duty, and also that 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.
16.  The applicant essentially stated that he worked for the same company for most of the last 30 years until the company went out of business and feels as though he is a good citizen and a real benefit to the community where he lives.

17.  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.

18.  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.

19.  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.

20.  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.

2.  The applicant’s contention that he was only 17 years old at the time of his offenses was considered.  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.

3.  The applicant’s post-service work history and conduct were also considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

4.  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.

5.  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. 

6.  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.

7.  The applicant’s record of service shows that he had 151 days of lost time due to AWOL and confinement, that he accepted NJP under Article 15 of the UCMJ on three occasions, and was convicted by court-martial on two occasions.  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.


8.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on or about 1 June 1979.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 31 May 1982.  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

__KN ___  __DH ___  ___LD __  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.




____Kathleen Newman______
          CHAIRPERSON




INDEX

CASE ID
AR20060010202
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19670929
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.