RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  19 June 2007
	DOCKET NUMBER:  AR20070000928 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Barbara J. Ellis

Chairperson

Mr. Frank C. Jones II

Member

Mr. Qawiy A. Sabree

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, spouse of the former service member (FSM), requests that the FSM's undesirable discharge be upgraded to general under honorable conditions. 

2.  The applicant states, in effect, that the FSM was worried about his children because his wife at the time had taken them, and he was worried about his father who had a bad heart.  The FSM also stated that he had done his time and served his country.  He said that he should not have had to go back.

3.  The applicant provides a copy of the FSM's power of attorney, a copy of the FSM's Undesirable Discharge Certificate and Armed Forces of the United States Report of Transfer or Discharge (DD Form 214), five letters of support, the FSM's separation packet, Enlisted Qualification Record, and Veterans Affairs decision documents denying him unemployment compensation and veterans benefits. 

CONSIDERATION OF EVIDENCE:

1.  On 16 January 1968, the FSM enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 11B1O (Light Weapons Infantryman).

2.  On 15 July 1968, the FSM was assigned for duty as an infantryman with the 28th Ordnance Company, in the Federal Republic of Germany. 

3.  On 2 December 1968, the FSM was reassigned to the 545th Ordnance Company, in the Federal Republic of Germany.

4.  On 5 February 1969, the FSM received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) for 1 day; for breach of the peace; and for being drunk and disorderly.  The punishment included reduction to private, pay grade E2 (suspended), a forfeiture of $22.00 pay per month for 1 month, and 14 days restriction and extra duty.

5.  On 29 May 1969, the FSM received NJP for unlawfully carrying a concealed weapon and being inattentive while posted as a sentinel.  The punishment included reduction to private, pay grade E2 (suspended), restriction and extra duty for 14 days.  The suspended reduction was vacated on 3 June 1969 and he was reduced to private, pay grade E2.

6.  On 5 August 1969, the FSM received NJP for AWOL (less than 1 day). The punishment included reduction to private, pay grade E1.

7.  On 26 September 1969, the FSM was reassigned to the 144th Ordnance Company, in the Federal Republic of Germany.

8.  On 7 November 1969, the FSM was returned to the United States for duty at Fort Hood, Texas.

9.  On 8 October 1970, the FSM was convicted by summary court-martial of AWOL (two specifications, 16 days); and for failing to register his vehicle on post, failing to display a valid safety inspection sticker, and for driving without a valid drivers license.  His sentence consisted of reduction to private, pay grade E1, confinement at hard labor for 30 days (suspended) and forfeiture of $90.00 pay per month for 1 month.  

10.  On 28 December 1970, the FSM received NJP for failing to go to his appointed place of duty.  The punishment included reduction to private, pay grade E1, forfeiture of $30.00 pay per month for 1 month, and 14 days restriction and extra duty.  His appeal was denied.

11.  On 3 March 1971, the FSM was interviewed by the chaplain.  After reviewing the his background, record and present motivation, the chaplain recommended that he not be considered for further rehabilitation and that he be discharged for unfitness.

12.  On 3 March 1971, a medical examination found the FSM to be qualified for separation with a physical profile of 1.1.1.1.1.1. 

13.  On 8 March 1971, the FSM was convicted by special court-martial of AWOL (37 days).  His sentence consisted of confinement at hard labor for 
3 months and forfeiture of $50.00 pay per month for 3 months.  

14.  On 12 March 1971, FSM’s commander counseled him regarding his pending board action for reasons of unfitness.  During the interview, the FSM was informed of the effects this action could have on his civilian life as well as make him ineligible for many or all benefits as a veteran.  The FSM indicated his understanding and that he wanted out of the service by the most expedient means.

15.  On 15 March 1971, the FSM’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-212, for unfitness.  The commander stated that the FSM had received one summary court-martial, one special court-martial, had accrued about 84 days of lost time due to AWOL and confinement, lacked motivation toward self improvement, and had a negative attitude in regards to his military responsibilities.
 
16.  On 17 March 1971, the FSM consulted with counsel, and elected not to make a statement in his own behalf and waived representation by counsel.

17.  On 31 March 1971, the appropriate authority approved the recommendation for discharge and directed that the FSM be issued an Undesirable Discharge Certificate.  

18.  Accordingly, the FSM was discharged under conditions other than honorable on 2 April 1971.  He had completed 2 years, 10 months and 26 days of creditable active duty and had 111 days of lost time due to AWOL and confinement.
 
19.  There is no indication that the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

20.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

21.  The five letters of support provided by the applicant were written by various ministers who have known the FSM for many years.  They attest to his good character, integrity, generosity, and compassion.  Furthermore, they speak to his being a great organizer and hard worker who volunteers his time and energy.

DISCUSSION AND CONCLUSIONS:

1.  The FSM’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

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

3.  Notwithstanding the applicant's implied contention that it would be unjust not to upgrade the FSM's discharge, there is no available evidence to show that the FSM had any mitigating circumstances or that his AWOL was a reasonable solution to them.  

4.  The FSM’s good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated and excessive acts of indiscipline during his military service.

5.  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 the aforementioned requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__BJE___  __QAS__  __FCJ _     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.



__        Barbara J. Ellis____
          CHAIRPERSON


INDEX

CASE ID
AR20070000928
SUFFIX

RECON
 
DATE BOARDED
20070619 
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19710402
DISCHARGE AUTHORITY
AR 635-212. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.4000
2.

3.

4.

5.

6.