RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060014115 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Thomas M. Ray

Member

Ms. Rea M. Nuppenau

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 an upgrade to his Undesirable Discharge.

2.  The applicant states, in effect, that when he entered the military he had every intention of doing the best job he could.  He states that he was immature and irresponsible during the time of his military service.  Since then he has been an asset to his community and country, and he humbly requests a review of his life since the Army.

3.  The applicant provides:

      a.  a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge);

      b.  a copy of a letter from the Office of the Sheriff for Yadkinville, North Carolina, dated 28 August 2006;

      c.  a copy of a letter from SPEVCO (Special Vehicles Company), dated  
29 August 2006;

      d.  a copy of a letter from Las Vegas Motor Speedway, dated  
30 August 2006; and 

      e.  a copy of his discharge recommendation, dated 2 February 1967.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 28 March 1968.  The application submitted in this case is dated 26 September 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 entered active duty on 5 March 1965.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 11C1P (Infantry Indirect Fire Crewman).

4.  On 13 July 1965, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty without proper authority.

5.  On 8 March 1966, the applicant accepted NJP under the provisions of Article 15, UCMJ for having knowledge of a lawful order, failed to obey the order issued by two noncommissioned officers, an order which it was his duty to obey.  His punishment was reduction to private/pay grade E-2, 14 days restriction, and
14 days extra duty.

6.  On 27 June 1967, the applicant was convicted by a special court-martial of two specifications of being absent without leave (AWOL) for the periods
28 March to 17 April 1967, 22 April to 8 May 1967, and 13 May to 13 June 1967. His sentence consisted of reduction to private/pay grade E-1, forfeiture of $86.00 per month for six months, and confinement for six months (confinement was suspended for six months).

7.  On 13 November 1967, the applicant was convicted by a special court-martial for one specification of AWOL for the period 25-30 October 1967.  His sentenced consisted of confinement for six months and forfeiture of $86.00 per month for six months.

8.  On 12 December 1967, the applicant's commander recommended that the applicant be discharged under the provision of Army Regulation 635-212 (Personnel Separation) for unfitness because of habits and apparent character traits manifested by frequent incidents of a discreditable nature with military authorities.

9.  On 1 February 1968, the applicant consulted with legal counsel and was advised of the basis for the contemplated action to accomplish his separation under Army Regulation 635-212 for unfitness.  The applicant waived consideration of his case to be heard by a board of officers, waived a personal appearance before a board of officers, submitted no statement on his own behalf, and waived representation by an appointed counsel.

10.  The applicant acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him.  He further understood that, as the result of the 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 law, and that he may expect to encounter substantial prejudice in civilian life.

11.  On 2 February 1968, the applicant’s commander forwarded the recommendation for separation to the Commander of Headquarters, 82nd Airborne Division, Fort Bragg, North Carolina.

12.  On 13 February 1968, the major general in command of Headquarters, 82nd Airborne Division, Fort Bragg, North Carolina, approved the request and directed that the applicant be furnished an Undesirable Discharge Certificate.

13.  On 28 March 1968, the applicant was discharged.  The DD Form  
214 he was issued shows he completed a total of 2 years, 7 months, and 
15 days of active service.  He had accrued a total of 159 days of lost time.

14.  The letters from the Office of the Sheriff of Yadkinville, North Carolina; from SPEVCO; and from by Las Vegas Motor Speedway, were written on behalf of the applicant to provide a synopsis of his character, reputation, work ethics, honesty, and good behavior in the community.

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

16.  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.

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, 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 requests an upgrade to his undesirable discharge.

2.  The three letters written on behalf of the applicant are noted.  However, his post-service character and good reputation in his community is not sufficient for upgrading a properly issued discharge.  Also, his immaturity and irresponsibility does not constitute grounds to upgrade his undesirable discharge.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His numerous acts of misconduct render his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 March 1968; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
27 March 1971.  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

___tmr___  ___rmn__  ___jtm__  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.




_________John T. Meixell__________
          CHAIRPERSON




INDEX

CASE ID
AR20060014115
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070417
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
 DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.