RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 April 2007
	DOCKET NUMBER:  AR20060012720 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Linda Simmons

Chairperson

Mr. Jeffrey Redmann

Member

Mr. Scott Faught

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 that his undesirable discharge be upgraded to a general discharge. 

2.  The applicant states that he entered the Army when he was 17 years old on a buddy system.  He contends that he was told he would be able to obtain his funeral director’s license.  He states that there was a breach of contract with the Army and that after he took the oath he was told that he was the only person in the Army who wanted that field and they would not have a school for just one person.  He goes on to state that after basic training he was assigned to quartermaster school, that he wanted out of the Army, and that he went home.  He has been out of the Army for 33 years and has kept himself employed and he recently graduated from college with an Associate’s degree.  

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 26 July 1974.  The application submitted in this case is dated 20 August 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 was born on 2 September 1956.  He enlisted on 3 December 1973 for a period of 3 years.  His enlistment contract shows he enlisted for station of choice (Fort Bliss, Texas) and military occupational specialty (MOS) 00G (airframe crewman controller).  The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was erroneously enlisted for MOS 00G and that he waived this option for MOS 57F (memorial activities specialist).  He successfully completed basic combat training.  His DA Form 20 also shows that while in advanced individual training (AIT) for MOS 57F the applicant went absent without leave (AWOL) four times (from 19 February 1974 to 6 March 1974; from 12 March 1974 to 27 March 1974; from 1 April 1974 to 4 April 1974; and from 15 April 1974 to 25 May 1974).  He was placed in confinement on 
25 May 1974.      
4.  On 14 June 1974, contrary to his pleas, the applicant was convicted by a special court-martial of the AWOL periods.  He was sentenced to be confined at hard labor for 4 months and to forfeit $200 pay per month for 6 months.  On 
26 June 1974, the convening authority approved the sentence.

5.  Between 13 June 1974 and 10 July 1974, the applicant displayed a pattern of unacceptable behavior as evidenced by a Resume of Attitude, Conduct, Performance and Discreditable Acts provided by the applicant’s commanding officer which included disobeying a lawful order, failing numerous barracks inspections, demonstrating a poor attitude, and failing to comply with instructions.

6.  On 19 July 1974, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to an established pattern for shirking. 

7.  On 19 July 1974, the applicant consulted with counsel and waived consideration of his case by a board of officers and elected not to make a statement on his own behalf.

8.  On 24 July 1974, the separation authority approved the recommendation for separation and directed the issuance of an undesirable discharge.

9.  Accordingly, the applicant was discharged on 26 July 1974 with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to an established pattern for shirking.  He had served 
3 months and 6 days of creditable service with 138 days of lost time due to AWOL and confinement.

10.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5(a) provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern for shirking, failure to pay just debts, failure to support dependents and homosexual acts.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 

12.  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.  Although the applicant contends that there was a breach of contract and that he was told he would be able to obtain his funeral director’s license, evidence of record shows he was sent to AIT for MOS 57F.  Presumably he would have obtained a funeral director’s license, or the Army equivalent, had he stayed to complete the course.

2.  Age/immaturity is not a sufficiently mitigating factor.  There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures prior to going AWOL.  

3.  Good post service conduct alone is normally not a basis for upgrading a discharge.

4.  The applicant’s brief record of service included one special court-martial conviction and 138 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

6.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

7.  Records show the applicant should have discovered the alleged injustice now under consideration on 26 July 1974; therefore, the time for the applicant to file a request for correction of any injustice expired on 25 July 1977.  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

LS______  _JR_____  __SF___  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.




___Linda Simmons______
          CHAIRPERSON




INDEX

CASE ID
AR20060012720
SUFFIX

RECON

DATE BOARDED
20070405
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19740726
DISCHARGE AUTHORITY
AR 635-200 Chapter 12
DISCHARGE REASON
Unfitness
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.