RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  9 August 2007
	DOCKET NUMBER:  AR20070004690 


	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 an upgrade of his undesirable discharge, characterized as under other than honorable conditions to a general discharge. 

2.  The applicant states, in effect, that he encountered discrimination during his military service.

3.  The applicant did not provide any documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 26 February 1974, 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 record shows that he enlisted in the Regular Army on 12 September 1972.  Records further show that he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was private/pay grade E-2.

4.  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 the following occasions:

	a.  On 25 October 1972, for being absent without leave (AWOL) during the period on or about 23 October 1972 through on or about 24 October 1972.  His punishment consisted of 14 days restriction, 14 days extra duty, and forfeiture of $67 pay per month for 1 month.


	b.  On 23 May 1973, for failing to go to his appointed place of duty.  His punishment consisted of reduction to the grade of private/pay grade E-1, forfeiture of $100 pay per month for 2 months, and placement in the Correctional Custody Facility for 30 days.

	c.  On 10 August 1973, for disrespecting a superior commissioned officer. His punishment consisted of 10 days restriction and 10 days extra duty.

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 AWOL during the period 7 May 1973 through 13 May 1973.

6.  Item 50 (Synopsis of Specifications, Including date of Offense) of the applicant's DA Form 20B (Insert Sheet to DA Form 20 Record of Court-Martial Convictions) shows that the applicant was AWOL during the period on or about 7 May 1973 through on or about 14 May 1973.

7.  Headquarters, 197th Infantry Brigade, Fort Benning, Georgia, Special Court-Martial Orders Number 106 dated 24 July 1973, show that the applicant was arraigned and tried before a special court-martial on 7 June 1973 for being AWOL during the period from on or about 7 May 1973 through on or about
14 May 1973.  The applicant pled not guilty to the charge and specification of being AWOL.  The military judge found him guilty of the charge and specification of being AWOL.  The applicant was sentenced to forfeiture of $50 pay per month for 3 months, reduction to the grade of private/pay grade E-1, hard labor without confinement for 30 days, and restriction to the company area for 30 days.

8.  Headquarters, 197th Infantry Brigade, Fort Benning, Georgia, Special Court-Martial Orders Number 106 dated 24 July 1973, further show that the sentence was adjudged on 3 July 1973 and was approved and ordered executed by the convening authority on 24 July 1973.

9.  On 27 June 1973, the applicant's immediate commander initiated a bar to reenlistment citing the applicant's disciplinary problems and listing the dates the applicant was counseled.  On 10 July 1973, the intermediate commander recommended approval of the bar to reenlistment and on 10 July 1973, the approval authority approved the applicant's bar to reenlistment.


10.  On 5 September 1973, the immediate commander submitted a memorandum requesting the applicant's "Rehabilitative Transfer" in accordance with paragraph 13-7b, chapter 13 of Army Regulation 635-200 (Personnel separations).  

11.  On 2 October 1973, the applicant's commander forwarded a memorandum to the intermediate commander recommending the applicant be eliminated from the service for unfitness while requesting a waiver for rehabilitative transfer.

12.  On 4 October 1973, the intermediate commander recommended approval of the rehabilitative transfer.

13.  On 12 November 1973 the approval authority approved the rehabilitative transfer.  

14.  On 3 December 1973, a memorandum for record was signed by the Assistant Adjutant General, Headquarters United States Army Infantry Center, Fort Benning, Georgia, stating, in effect, that the applicant will have a different defense counsel to represent him.

15.  On 7 February 1974, the approval authority approved the findings and recommendations of a Board of Officers in the case of the applicant's separation. The facts and circumstances of the Board of Officers Proceedings are not available for review with this case.  

16.  On 12 February 1974, the Assistant Adjutant General, Headquarters United States Army Infantry Center, Fort Benning, Georgia, forwarded to the applicant's intermediate commander, a memorandum pertaining to the applicant's discharge under the provisions of chapter 13 of Army Regulation 635-200.

17.  Headquarters, United States Army Infantry Center, Fort Benning, Georgia, Special Orders Number 052, dated 21 February 1974 show that the applicant was discharged by reason of unfitness, under the provisions of chapter 13 of Army Regulation 635-200 with a characterization of service of under other than honorable conditions effective 26 December 1974.

18.  The DD Form 214 (Report of Separation from Active Duty) the applicant was issued at the time of his discharge confirms he was discharged and his characterization of service was under other than honorable conditions.  This form further confirms that he completed a total of 1 year, 5 months, and 8 days of creditable active military service and that he accrued 7 days of lost time.

19.  The applicant's records do not reflect any instances of discrimination or that the applicant was treated any differently than any other Soldier assigned to the same unit.  The records further do not show that the applicant addressed the issue of discrimination with his chain of command or with any supporting agencies at the installation to which he was assigned. 

20.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

22.  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.

23.  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 he is entitled to an upgrade of his discharge.

2.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 occasions.  Additionally, the applicant's records show an instance of a special court-martial and an attempt by his chain of command for rehabilitative transfer.  

3.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.  It is presumed in this case that the applicant's discharge was in accordance with applicable regulation and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge or an honorable discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 February 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 February 1975.  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
AR20070004690
SUFFIX

RECON

DATE BOARDED
20070809
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19740226
DISCHARGE AUTHORITY
AR 635-200, Chap 13
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.