RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  6 September 2007
	DOCKET NUMBER:  AR20070004348 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons 

Chairperson

Mr. Frank C. Jones

Member

Ms. Carmen Duncan

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 (UD), characterized as under other than honorable conditions (UOTHC), be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that his UD should be upgraded to an honorable discharge.  He feels that he has changed over the past 15 years and has provided letters to support his contention.  He is requesting an upgrade to allow him to join a service organization.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and several letters in support of his request.

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's record shows he enlisted in the Regular Army on 28 June 1972.  The applicant successfully completed basic combat training at Fort Polk, Louisiana, and advanced individual training at Fort Carson, Colorado.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 12A, Pioneer.  He was promoted to pay grade E-2 on 28 December 1972.






3.  Between 17 October 1972 and 22 May 1973, he received nonjudicial punishment (NJP) on four occasions under Article 15, of the UCMJ (Uniform Code of Military Justice), for wrongfully possessing marijuana, for being absent without leave (AWOL) from 8 to 12 March 1973 and from 4 to 7 May 1973, and 
for being absent from his appointed place of duty on 15 May 1973.  His punishments consisted of a reduction to pay grade E-1, a forfeitures of pay, and extra duties. 

4.  In accordance with his plea, he was found guilty by a special court-martial on 29 August 1973, of being drunk on duty and wrongfully communicating a threat to kill a commission officer.  His sentence consisted of confinement for 4 months and a forfeiture of pay for 4 months.  

5.  All of the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy of his DD Form 214 which shows that on 5 November 1973, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness.  He was furnished a UD in the pay grade of  E-1.  He had completed a total of 1 year, 1 month, and 25 days of creditable service and he had 73 days of lost time due to being AWOL.

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

7.  The applicant provided several letters in support of his request for an upgrade of his discharge.  These letters attest to his character, dedication, and involvement in community activities; however, none of the authors specifically mention they support an upgrade of his discharge or indicate they are aware of his UD.  

8.  Army Regulation 635-200 sets forth the policy and prescribes the procedure for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5a(1) provided for the separation of individuals for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  When separation for unfitness was warranted, an undesirable discharge was issued by the separation authority.



9.  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.

10.  Army Regulation 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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  All the facts and circumstances pertaining to his discharge are unavailable for review.

3.  The Board noted that the applicant’s record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason for the applicant's discharge and the characterization of his service and the Board presumed Government regularity in the discharge process.

4.  The applicant stated that he has changed over the past 15 years.  The letters of support reflect good character and willingness to help those in need; however; there is no indication the authors were aware he was discharged with a UD from the Army.  The letters of support were considered; however, they are not sufficiently mitigating to warrant an upgrade of his discharge.

5.  The applicant contends that he would like to have an upgrade of his UD in order to join a service organization.  The applicant is advised that the Board does not change the character of service nor does it upgrade discharges for the purposes of enabling a former service man or woman to join a service organization.  
6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS__  ___FCJ__  ___cd___  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.




_____Linda D. Simmons____
          CHAIRPERSON




INDEX

CASE ID
AR20070004348
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070906
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19731105
DISCHARGE AUTHORITY
AR 635-200, chap 13
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.