RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 July 2007
	DOCKET NUMBER:  AR20060017107 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk 

Member

Mr. John G. Heck

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 discharge be upgraded to honorable.

2.  The applicant states that he was only 17 years old at the time he entered the military.  The applicant continues that his age and immaturity were the cause of the indiscipline which resulted in his discharge.

3.  The applicant provides a Department of Veterans Affairs Statement in Support of Claim in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 21 April 1965, the date of his discharge.  The application submitted in this case is dated 4 December 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 he enlisted in the Army at the age of 17, on 3 August 1964, for a period of three years.  He completed basic combat and attended advanced individual training.  Records show that he was a "holdover" and did not successfully complete advanced individual training.  The highest rank he attained while serving on active duty was private/pay grade E-2.  

4.  The record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for the following offenses:  12 November 1964, for being intoxicated, disorderly in conduct, and insubordinate to authority on 11 November 1964; 24 February 1965, for being drunk and disorderly and bringing disgrace upon the armed service on
20 February 1965; and breaking house arrest on two occasions on 21 March 1965.

5.  The applicant's records contain a Criminal Investigation Report, dated 1 March 1965, which shows the applicant purchased marijuana from a fellow Soldier on 30 December 1964.  

6.  On 6 April 1965, the unit commander advised the applicant that he was recommending his discharge under the provisions of Army Regulation 635-208 (Personnel Separations) by reason of unfitness for continued service based on his performance, conduct, and drug use.  

7.  The applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel.  

8.  On 12 April 1965, the separation authority directed the applicant’s separation under the provisions of Army Regulation 635-208 and that he receive an Undesirable Discharge Certificate.  On 21 April 1965, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to him at the time, confirms the applicant completed a total of 8 months and 19 days of creditable active military service.

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

10.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided for the separation of members who demonstrated undesirable habits and traits of character.  An undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7s, 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.

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.  The applicant's contention that his discharge should be upgraded to an honorable discharge based on the fact that he was young and immature at the time of his military service was carefully considered and determined to be without merit.

2.  Records show that the applicant was only 17 years of 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.

3.  Evidence of records shows that the applicant was drunk on numerous occasions and that he was punished for possession and use of marijuana.  Additionally, records show that he received punishment under the UCMJ and investigated by the Criminal Investigation Division during his service of only 8 months and 19 days.  

4.  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.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 April 1965; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 20 April 1968.  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

_JLP___  _LDS___  __JGH____  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 D. Simmons__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.