RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20070001766 


	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

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Robert J. Osborn, II

Member

Mr. Michael J. Flynn

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, that his Undesirable Discharge be upgraded.

2.  The applicant states, in effect, that he was a heavy drinker at the time of his discharge.

3.  The applicant provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 7 June 1969, the date of his discharge.  The application submitted in this case is dated 21 January 2007.

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 enlisted in the Regular Army on 26 June 1967, at the age of 22.  He completed basic combat training and was trained in, awarded and served in military occupational specialty (MOS) 76A (Supply Clerk) and the highest rank he attained while serving on active duty was private first class/pay grade E-3.  

4.  The applicant’s records show that he was awarded the National Defense Service Medal.

5.  The record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:  on 23 February 1968, for participating in a breach of the peace by wrongfully engaging in an affray (a noisy quarrel or brawl); for being drunk and disorderly in quarters; and on 18 June 1968; for failure to go to his appointed place of duty on 8 May 1968.  
6.  Special Court-Martial Order Number 51, dated 6 March 1969, shows the applicant pled guilty to being absent without leave authority (AWOL) from 4 December 1968 through 7 December 1968 and from 11 February 1969 through 14 February 1969.  The resultant sentence included confinement at hard labor for six months, suspended for six months, reduction to the rank of private/pay grade E-1, and a forfeiture of $73.00 per month for six months.  

7.  Special Court-Martial Order Number 83, dated 19 April 1969, shows that effective on 19 May 1969, the unexecuted portion of the sentence to confinement at hard labor was suspended until 19 October 1969, at which time, unless the suspended portion of the sentence is sooner vacated, the unexecuted portion of the sentence to confinement would be remitted without further action. 

8.  On 2 May 1969, the applicant was seen for a psychiatric evaluation by a medical doctor and clinical psychology officer at the U.S. Army Hospital, Ryukyu Islands, Department of Psychiatry, Okinawa, Japan. The evaluation revealed no disqualifying mental defects sufficient to warrant disposition through medical channels for psychiatric reasons.  

9.  The evaluation shows that the applicant was capable of distinguishing right from wrong and of adhering to the right.  The evaluation further shows that the applicant had the mental capacity to understand and to participate in administrative procedures deemed necessary by command and that the applicant had no psychiatric diagnosis.  The applicant's records do not show he was treated for alcoholism or that he requested treatment.  The applicant's records also show that he was medically cleared for separation.

10.  Special Court-Martial Order Number 94, dated 8 May 1969 shows the applicant pled guilty to on 6 May 1969 and was convicted of being AWOL during the period 2 April 1969 through 18 July 1969.  The resultant sentence included confinement at hard labor for sixty days and restriction for ninety days.  

11.  On 12 May 1969, the unit commander advised the applicant that he was recommending the applicant’s discharge under the provisions of Army Regulation 635-212 (Personnel Separations), by reason of unfitness because of his lackadaisical attitude toward the service, his disregard for authority, with an established pattern of AWOL and he cannot be depended on to perform any duties.  

12.  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.  The applicant elected not to provide any statements on his behalf.

13.  Special Court-Martial Order Number 100, dated 19 May 1969, shows that effective on 19 June 1969, the unexecuted portion of the sentence to confinement at hard labor was also suspended until 19 October 1969, at which time, unless the suspended portion of the sentence is sooner vacated, the unexecuted portion of the sentence to confinement was remitted without further action. 

14.  Special Court-Martial Order Number 108, dated 29 May 1969, modified the previous special court-martial convictions to show that the unexecuted portion of the sentence to confinement at hard labor was suspended until 19 October 1969.  The modification further shows that suspended portion of the sentence was remitted without further action. 

15.  On 29 May 1969, the separation authority directed the applicant’s separation under the provisions of Army Regulation 635-212 for unfitness and that he receive an Undesirable Discharge Certificate.  On 7 June 1969, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the applicant completed a total of 1 year, 10 months, and 19 days of creditable active military service and that he accrued a total of 23 days of time lost due to AWOL.

16.  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.

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An undesirable discharge was normally considered appropriate for members separating under these provisions. 

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

19.  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 contends that his under other than honorable conditions discharge be upgraded because he was young and also a heavy drinker.

2.  There is no evidence, and the applicant has provided insufficient evidence, that shows he suffered from or received treatment for alcohol dependency during his military service or that alcohol dependency was the cause of his indiscipline and subsequent separation.  Therefore, this contention is without merit.

3.  Records show that the applicant was 22 years of age at the time of his offenses.  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.

4.  The record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  Additionally, there is no evidence that the applicant's drinking problem caused his misconduct nor does his record show that he sought assistance the appropriate military authorities with regard to his drinking problem.

5.  The applicant's record of service included two nonjudical punishments for participating in a breach of the peace by wrongfully engaging in an affray (a noisy quarrel or brawl); for being drunk and disorderly in quarters; and for failure to go to his appointed place of duty and three Special Court-Martial convictions which show 23 days of AWOL.  

6.  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.

7. In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 June 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 June 1972.  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

_MJA___  _RJO___  _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
AR20070001766
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
1969/06/07
DISCHARGE AUTHORITY
AR 635-212 
DISCHARGE REASON
unfitness
BOARD DECISION
DENY
REVIEW AUTHORITY
Director
ISSUES         1.

2.

3.

4.

5.

6.