RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  9 August 2007
	DOCKET NUMBER:  AR20070004396 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Ms. Rea M. Nuppenau

Member

Mr. Dennis J. Phillips

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 his Under Honorable Conditions Discharge be upgraded to an Honorable Discharge. 

2.  The applicant states, in effect, that his discharge was inequitable because it was based on only one isolated incident.  He further states that he was young and immature at the time. 

3.  The applicant provides copies of his:

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 21 October 1968, Honorable Discharge;

	b.  DD Form 214 dated 27 February 1970, Under Honorable Conditions Discharge; and

	c.  DD Form 214 (Report of Separation from Active Duty) dated 15 August 1974, Under Honorable Conditions Discharge.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 27 February 1970, the date of his discharge.  The application submitted in this case is dated 15 March 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 was born on 24 June 1950 and enlisted in the Regular Army on 21 February 1968 at the age of 17 for a period of 3 years. Records further show that he completed basic combat and advanced individual training and was awarded military occupational specialty 36C (Lineman).  


4.  The applicant's DD Form 214 dated 21 Oct 1968 shows that the applicant was honorably discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administration Separations) for the purpose of reenlistment.  The applicant reenlisted in the Regular Army on 22 October 1968 for a period of 4 years.  

5.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal date ETS) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that the applicant was absent without leave (AWOL) during the period 12 May 1969 through 22 June 1969.  Court-martial charges were preferred against the applicant.

6.  On 28 July 1969, a special court-martial convicted the applicant of one specification of AWOL.  The adjudged sentence consisted of reduction to private, the forfeiture of $55.00 per month for 6 months, and confinement at hard labor for 6 months.

7.  Headquarters, United States Forces Support District, Hessen, Germany, Special Court Martial Orders Number 16, dated 7 August 1969, affirmed the conviction, but affirmed only so much of the sentence as provided for reduction to private, forfeiture of $30.00 per month for 6 months, and confinement at hard labor for 6 months (suspended until 27 January 1970, at which time, unless sooner vacated, it shall be remitted without further action).

8.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 5 November 1969 for abandoning his appointed place of duty on 3 November 1969.  He was sentenced to forfeiture of $50 for 1 month and extra duty for 2 hours a day for 7 days.

9.  On 6 February 1970, the applicant's immediate commander recommended he be separated for unsuitability under the provisions of Army Regulation 635-212 (Personnel Separations).  The commander stated that the discharge was recommended because of character traits manifested by repeated commission of UCMJ offenses. 

10.  The applicant consulted with legal counsel.  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. 

11.  On 10 February 1970, the separation authority approved the applicant’s separation under the provisions of Army Regulation 635-212 for unsuitability and directed that he receive a General Discharge Certificate.  On 27 February 1970, 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 26 days of creditable active military service and that he accrued a total of 42 days of time lost due to AWOL.  

12.  Item 15 (Reenlistment Code-RE) of the applicant's DD Form 214 dated 27 February 1970 shows an RE code of 3B.

13.  On 2 April 1974, the applicant enlisted in the Regular Army for 2 years under the authority of Army Regulation 601-210 (Active and Reserve Component Reenlistment Program).  He completed basic combat training at Fort Ord, California and proceeded to Fort Sill, Oklahoma. 

14.  On 11 July 1974, the immediate commander advised the applicant of initiation of separation action under the provisions of Army Regulation 635-200 for fraudulent enlistment (concealment of prior service).

15.  On 11 July 1974, the separation authority approved the applicant’s separation under the provisions of chapter 14, Army Regulation 635-200 by reason of fraudulent entry and directed that he receive a General Discharge Certificate.  On 15 August 1974, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the applicant was discharged under honorable conditions and completed a total of 4 months and 14 days of creditable active military service.

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 unsuitability.  A general discharge was normally considered appropriate for members separating under these provisions. 

18.  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 (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 27 February 1970 general discharge should be upgraded to an honorable discharge because it was based on an isolated incident and that he was young and immature.

2.  The applicant was almost 20 years old when he went AWOL.  There is no indication he was any less mature than any other young Soldier who enlisted and successfully completed a term of enlistment. 

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The available records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  Good post-service conduct and/or post experience or maturity are not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.  There is insufficient basis and the applicant did not provide evidence to upgrade his discharge.  

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 27 February 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 26 February 1973.  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

__jcr___  __rmn___  __djp___  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.



							Jeffrey C. Redmann
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070004396
SUFFIX

RECON

DATE BOARDED
20070809
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19740815
DISCHARGE AUTHORITY
AR 635-200, Chap 14
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.