RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 August 2007
      DOCKET NUMBER:  AR20060017036


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Michael J. Flynn              |     |Chairperson          |
|     |Mr. Larry W. Racster              |     |Member               |
|     |Mr. Donald W. Steenfott           |     |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, in effect, an upgrade of his undesirable
discharge.

2.  The applicant states, in effect, that he enlisted at the age of 17,
under the delayed entry program, without a waiver and therefore his
enlistment was invalid and illegal.  He adds that as a juvenile he did not
understand the consequences of his actions – the undesirable discharge has
followed him all his life - for 30 years – and, he has paid for mistakes
made by an immature 16/17 year old boy.  He should not continue to be
punished for the Army's error of no waiver – he has paid unimaginably for
his actions and bad conduct which resulted in his discharge.

3.  In support of his request, the applicant provides a DD Form 293,
Application for Review of Discharge or Dismissal from the Armed Forces of
the United States; a copy of his DD Forms 4, Enlistment Contract – Armed
Forces of the United States, dated 19 October 1972 and 30 October 1972,
respectively; a copy of his DA Form 20, Enlisted Qualification Record; a
copy of his active duty orders; a series of documents related to his
misconduct; a copy of orders directing him to report to the transfer point
for separation processing; and two copies of his DD Form 214, Report of
Separation from Active Duty.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is requesting correction of an alleged injustice which
occurred on 29 January 1974, the date of his discharge.  The application
submitted in this case is dated 27 November 2006.
3.  The applicant enlisted in the US Army Reserve on 19 October 1972.  On
30 October 1972, the applicant enlisted in the Regular Army for 3 years.
On the day on his enlistment in the US Army Reserve, the applicant's mother
signed a DD Form 373, Consent, Declaration of Parent or Legal Guardian,
consenting to his enlistment in the Army.

4.  On the day on his enlistment, the applicant completed a DA Form 3286,
Statement for Enlistment.  In Part II – Statement of Law Violations and
Previous Conditions, the applicant answered "yes" to the following
questions:  "(3) Have you ever been arrested, cited, charged or held by
Federal, State, County, City or other law enforcement authorities or by
Juvenile Court or Juvenile Probation Officials for any violation of any
Federal Law, State Law, County or Municipal Law, Regulation or Ordinance?
(4) Have you ever been convicted of a felony or any other offense, or
adjudicated a youthful or juvenile delinquent?  (6) Are you now or have you
ever been on parole, probation supervision, under suspended sentence, or
are you awaiting final action on charges against you?"

5.  Item 3 (Remarks), of this same form, required the applicant to give
full details if a "yes" response was given to any of the questions in the
paragraph above.  The applicant responded:  Reference Items 3, 4, and 6 /
Incorrigible / October 1962 – Phoenix / Probation.  The DA Form 3286 was
signed by both the applicant and his recruiter.

6.  On 10 October 1972, the applicant completed a DD Form 398, Statement of
Personal History.  In Item 18 of this form, he entered:  Incorrigible,
October 1962, Phoenix, Arizona – Probation, in response to the question,
"Have you ever been detained, held arrested, indicted or summoned into
court as a defendant in a criminal proceeding or convicted, fined, or
imprisoned or placed on probation, or have you ever been ordered to deposit
bail or collateral for the violation of any law, police regulation or
ordinance (excluding minor traffic violations for which a fine or
forfeiture of $25, or less was imposed)?"

7.  There is no evidence, and the applicant provided none, to support his
contention he was on probation on the day of his enlistment, and had been
on probation since October 1962, and a waiver was required for his
enlistment in the Army.

8.  The applicant successfully completed basic combat training at Fort Ord,
California.  He was sent to Fort Benning, Georgia, to attend advanced
individual training that would lead to award of the military occupational
specialty (MOS), 31B, Field Radio Mechanic.

9.  While attending advanced individual training, the applicant absented
himself without leave on 5 February 1973 and remained so absent until 21
February.  The applicant again absented himself without authority on 5
March and returned on 7 March 1973.  On his return, he was dropped from
the course and sent to Fort Gordon to undergo the same training.  The
applicant did not report as ordered and was reported absent without leave
on 25 May 1973.  He remained in this status until 31 May 1973.  He
absented himself without proper authority on 3 July 1973 and was dropped
from the rolls of his organization on 2 August 1973 and remained in the
status until 22 October 1973.  There is no evidence the applicant
completed training and was awarded an MOS while he served on active duty.

10.  The evidence shows that while on this unauthorized absence, on 26
April 1973, the applicant was arrested by civil authorities and charged
as a juvenile for 1st degree burglary.  His case was later remanded from
the Arizona Superior Court to East Mesa Justice Court to allow his trial
as an adult.  He was tried and was sentenced to a suspended sentence and
placed on 6 months probation and to be released to Army authorities.

11.  On 27 February 1973, the applicant received nonjudicial punishment
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) for absenting himself without authority on 5 February 1973 and
remaining so absent until 22 February 1973.  The imposed punishment was a
forfeiture of $70.00 per month for one month.  The applicant did not appeal
the punishment.

12.  On 9 May 1973, the applicant received an Article 15 under the
provisions of the UCMJ for absenting himself without authority on 5 March
1973 and remaining so absent until 8 May 1973.  The imposed punishment was
a forfeiture of $71.00 per month for one month, restriction for 14 days and
extra duties for 14 days.  The applicant did not appeal the punishment.

13.  On 26 June 1973, the applicant received an Article 15 under the
provisions of the UCMJ for absenting himself without authority on 25 May
1973 and remaining so absent until 31 May 1973.  The imposed punishment
was a forfeiture of $150.00 per month for two months (suspended until 31
August 1973), restriction for 15 days and extra duties for 15 days.  The
applicant did not appeal the punishment.

14.  The applicant absented himself without proper authority on 3 July
1973.  He was dropped from the rolls of his organization on 31 July 1973.
While on this absence without leave, he was apprehended by civil
authorities in Mesa, Arizona,
on civil charges of attempted burglary, petty theft, and probation
violation.  He entered a plea of guilty and, on 1 August 1973, his
probation was revoked and he was sentenced to serve six months straight
time in the Maricopa County Jail.  A military detainer was placed on the
applicant by the Absentee/Deserter Division, The Adjutant General
Personnel Center, Fort Benjamin Harrison, Indiana.

15.  On 18 December 1973, the applicant was recommended for discharge under
the provisions of Army Regulation (AR) 635-206, paragraph 33a.  Separation
with an undesirable discharge certificate was deemed appropriate in view of
his civil conviction and his military record of non-judicial punishment
under Article 15, of the UCMJ.

16.  On 18 December 1973, the applicant acknowledged he was being
considered for elimination from service for his civil conviction.  In the
notice, he was presented with his rights to present his case to a board
of officers, to submit a statement in his own behalf, to be represented
by counsel and to waive his rights.  On 20 December 1973, the applicant
waived all his rights.

17.  On 18 December 1973, the applicant submitted a statement indicating he
had been convicted of attempted burglary and petty theft.  In this same
statement, he reported he did not intend to file an appeal of his
conviction.

18.  On 20 December 1973, the applicant underwent a mental status
evaluation.  His behavior was found to be normal.  He was found to be fully
alert and fully oriented.  His mood was level, his thinking process was
clear, and his thought content was normal.  His memory was determined to be
good.  The evaluating psychiatrist, a medical doctor, found him to be free
of significant mental illness, mentally responsible, able to distinguish
right from wrong and to adhere to the right, considered to have the mental
capacity to understand and participate in board proceedings, and to meet
retention standards of AR 40-501, chapter 3.

19.  The applicant underwent a separation physical examination and was
found to be medically qualified for separation on 17 December 1973.

20.  The members of the applicant's chain of command were unanimous in
recommending approval of the recommendation for his discharge and, on
22 January 1974, the approving authority approved the applicant's
separation from military service and direct he be reduced to the lowest
enlisted grade and be provided an undesirable discharge certificate.
21.  The applicant was discharged on 29 January 1974, in the rank and pay
grade, Private, E-1, under the provisions of AR 635-206 for being convicted
or adjudged a juvenile offender by a civil court during his current term of
active military service and, was issued a DD Form 258A, Undesirable
Discharge Certificate.  His service was characterized as under other than
honorable conditions.  He was credited with 8 months, and 11 days active
Federal service, with 19 days time lost due to absence without leave.

22.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge within its 15-year statute of limitations and, on
11 April 1983, he was notified, after careful consideration of his military
record and all other available evidence, the ADRB had determined he had
been properly discharged.

23.  AR 635-206, in effect at that time, set forth the basic authority for
the separation of enlisted personnel.  Paragraph 37 of the regulation
provided, in pertinent part, the convening authority is authorized to order
discharge or direct retention in the military service when disposition of
an individual has been made by a domestic court of the US or its
territorial possessions.  An undesirable discharge was normally considered
appropriate.

24.  AR 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, 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.

25.  AR 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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged under the
provisions of AR 635-206 for being convicted or adjudged a juvenile
offender by a civil court during his current term of active military
service.

2.  The available evidence shows that all requirements of law and
regulation were met and the rights of the applicant were fully protected
throughout the separation process.  An undesirable discharge, with service
characterized as under other than honorable conditions, was appropriate
under these circumstances.

3.  There is no evidence, and the applicant has provided none, to support
his contention his enlistment in the Army was invalid and illegal because
he was on probation on the day of his enlistment and a waiver for his
enlistment in the Army was not secured.

4.  The evidence shows that the applicant absented himself without
authorized leave repeatedly, was punished, and did not benefit from the non-
judicial punishment that was imposed.  While on one of his unauthorized
absences, he was arrested and was initially charged and tried as a juvenile
and was placed on probation for 6 months and released to Army authorities.

5.  The evidence further shows that his probation was later revoked; he
was tried, convicted, and sentenced to serve 6 months straight in the
Maricopa County Jail.

6.  On the date of his enlistment in the Regular Army, the applicant was
17 years of age and, he had his mother's consent to enlist in the Regular
Army.  The applicant's contentions that he was immature and he should not
continue to be punished for the mistakes of a 16/17 year old boy are
without merit.  The applicant underwent a mental status evaluation and
his behavior was found to be normal, he was found to be fully alert and
fully oriented, his mood was level, his thinking process was clear, his
thought content was normal, and his memory was determined to be good.
The psychiatrist who evaluated him found him to be free of significant
mental illness, mentally responsible, able to distinguish right from
wrong and to adhere to the right, and was considered to have the mental
capacity to understand and participate in board proceedings, and to meet
retention standards of AR 40-501, chapter 3.  Based on this evaluation,
it can reasonably be concluded that there is no evidence the applicant
was any less mature than other Soldiers of the same or of a younger age
who served successfully and completed their term of service.

7.  In order to justify correction of a military record, the applicant must
show, 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.

8.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his undesirable discharge.

9.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB and, he was notified
of that board's decision on 11 April 1983.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MJF___  __LWR__  __DWS_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  __   _Michael J. Flynn______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060017036                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070814                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19740129                                |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.0041                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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