RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  23 August 2007
	DOCKET NUMBER:  AR20070003821 


	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 J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Mr. John T. Meixell

Member

Mr. Richard T. Dunbar

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 from undesirable to a general discharge.

2.  The applicant states, in effect, due to the harsh conditions and pressures he was under in the time of war his discharge should be upgraded. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 1 December 1970; a State of Ohio, County of Belmont Deputy Oath of Office, dated 7 January 1975; a Berlin Heights Police Department Work Record, dated 25 March 1982; two Law Enforcement Certificates of Completion; a Belmont County Police Department Employee Evaluation, dated 1 December 1989; five letters of support; a Department of the Army Certificate of Training, dated 17 February 1967; and a DA Form 20 (Enlisted Qualification Record). 

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 enlisted in the Regular Army on 15 September 1966 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).  He was honorably discharged on 21 November 1968 and immediately reenlisted on 22 November 1968.

3.  On 16 May 1969, the applicant was convicted, pursuant to his pleas, by a special court-martial for being absent without leave (AWOL) for the period 
19 March 1969 through 28 April 1969.  His sentence consisted of confinement at hard labor for six months, forfeiture of $97.00 per month for six months, and reduction to the rank of Private/E-1.

4.  Evidence of record shows that the applicant was AWOL for the period 7 June 1969 through 11 September 1969.

5.  On 10 April 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to be at his appointed place of duty.

6.  On 21 August 1970, the applicant accepted NJP under Article 15, UCMJ for failure to be at his appointed place of duty.

7.  On 22 September 1970, the applicant's company commander initiated a request for discharge for unfitness under the provisions of Army Regulation
635-212 (Discharge Unfitness and Unsuitability).  

8.  On 22 September 1970, the applicant consulted with the Defense Counsel at Fort Bragg, North Carolina.  The applicant was advised of his rights and the effect of a waiver of those rights.

9.  The applicant was also advised of the basis for his separation under the provisions of Army Regulation 635-212.  The applicant indicated that he was counseled by appropriate counsel, that he waived consideration of his case by a board of officers, that he did not provide statements on his own behalf, and that he waived representation by military counsel.

10.  The applicant also indicated he was aware that as a result of the issuance of an undesirable discharge he may be ineligible for any or all benefits as a veteran under both Federal and state laws, and that he may expect to encounter substantial prejudice in civilian life based on an undesirable discharge.

11.  On 23 September 1970, the applicant underwent a mental evaluation by a medical physician who determined that he could distinguish right from wrong and adhere to the right, and that he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings.

12.  On 9 October 1970, the applicant was convicted, pursuant to his pleas, by a summary court-martial for failure to be at his prescribed place of duty on 
2 October 1970, 3 October 1970, and 5 October 1970.  His sentence consisted of confinement at hard labor for 30 days, forfeiture of $118.00 per month for one month, and reduction to the rank of Private/E-1.  Confinement at hard labor for 
30 days was suspended by the convening authority.



13.  On 14 October 1970, the applicant was convicted, pursuant to his pleas, by a summary court-martial for breaking restriction and failure to be at his prescribed place of duty on 12 October 1970.  His sentence consisted of confinement at hard labor for 30 days, forfeiture of $118.00 per month for one month, and reduction to the rank of Private/E-1.  Confinement at hard labor for 
30 days was suspended by the convening authority.

14.  On 23 November 1970, the appropriate authority approved the applicant's discharge for unfitness under the provisions of Army Regulation 635-212.  On 
1 December 1970, he was discharged with an undesirable discharge and a characterization of service of under other than honorable conditions after completing 3 years, 10 months, and 24 days of creditable active service with 
113 days of lost time due to being AWOL and confinement.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally appropriate.

17.  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 prior to his discharge he served under harsh conditions and pressures.  There is no evidence in the applicant's service records and the applicant has provided no evidence that supports this contention.  

2.  The Board acknowledges the applicant's good post-service since his discharge.  However, good post-service conduct alone is not a basis for upgrading a discharge and, upon review, the good post-service conduct is not sufficient to mitigate his indiscipline in the Regular Army.
3.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant's records show that he received two Article 15s, he was convicted by a special court-martial and two summary courts-martial, and had three instances of AWOL during his enlistment.  The applicant had completed 3 years, 10 months, and 24 days of creditable active service with 113 days of lost time.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___LE  __  __JTM __  __RTD__  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.




   ____ Lester Echols __
          CHAIRPERSON




INDEX

CASE ID
AR20070003821
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
UD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.7900.0000
2.

3.

4.

5.

6.