RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	   30 August 2007
	DOCKET NUMBER:  AR20070004703 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Bernard Ingold

Chairperson

Mr. Thomas Ray

Member

Mr. Gerald Purcell

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 under honorable conditions to honorable and his birth date be corrected on his discharge document.

2.  The applicant states that his birth date is incorrect based on a typographical error on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 10 April 1970.  Additionally he states, in effect, that he recalls being told he had to wait 90 days after his discharge date and then he could apply for a discharge characterization of service upgrade.  He lost track of his DD Form 214 and is just now asking for the discharge upgrade.  Further, he states, in effect, that he successfully retired after completing over 30 years of service in the private sector.  He writes he was young and immature at the time of his discharge and would now like favorable consideration of his upgrade request.  

3.  The applicant provides a copy of his discharge document. 

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.  On 13 January 1967, the applicant enlisted in the U. S. Army for 2 years.  Records show that he completed basic combat and advanced individual training, and was awarded the Military Occupational Specialty 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was private/pay grade E-2.  His initial expiration of term of service (ETS) date was 12 January 1969; however, he was discharged on 10 April 1970 after completing 


his contractual obligation of 2 years.  The reason for discharge sited on his DD Form 214 was ETS.  He had 454 days of lost time due to absent without leave (AWOL) and confinement status.  He did not serve in the Republic of Vietnam.

3.  The applicant’s record documents no acts of valor, significant achievement or service warranting special recognition.  

4.  The applicant's service records reveal an extensive history of misconduct.  He had three special court martial convictions as follows:  on 9 November 1967 for violating Article 121, Uniform Code of Military Justice (UCMJ), for stealing private property; on 14 May 1969 for violating Article 86, UCMJ, for AWOL during the period 5 January to 16 April 1969 and 17 April 1969 to 30 April 1969; and on
11 September 1969 for violating Article 86 and Article 95, UCMJ, for AWOL during the period 16 July 1969 to 18 August 1969 and for breaking arrest in quarters.

5.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on 2 August 1967 for stealing; on 5 October 1967 for failure to go to appointed place of duty; on 16 December 1968 for being AWOL during the period 26 October 1968 to
22 November 1968; and on 5 March 1970 for AWOL during the period
22 October 1969 to 6 February 1970 and AWOL on 16 February 1970.  

6.  The applicant's DD Form 214, dated 10 April 1970, shows in Item 9 (Date of Birth) the entry day "20", Month "Aug", and Year "69."  In Item 30 (Remarks) of the same DD Form 214, it shows the entry "EM's Birth date 20 Aug 49 not as shown Item #9."

7.  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.

8.  Title 10, U. S. Code, section 972, states, in pertinent part, that enlisted Soldiers are required to make up for time lost.  A Soldier who is returned to military duty after a period of being absent from his unit for more than one day without proper authority or who deserts is required to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted.  



9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a states, in pertinent part, 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.

10.  Army Regulation 635-200, paragraph 7b, in effect at the time of the applicant's discharge, states, in pertinent part, 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 general discharge may be issued if the Soldier was convicted of an offense by a general court martial or has been convicted by more than one special court martial in the current enlistment period or obligated service or any extensions thereof.  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 discharge should be upgraded to honorable as he served successfully in the private sector for over 30 years.  He further contends he was young and made immature decisions during his enlistment period, which he regrets.

2.  Public Law states, in effect, that a Soldier who is AWOL or in confinement for one day or more or whom deserts will make up the time lost when returned to military control.  The law requires Soldiers to complete their full term of contractual obligation, which is two years of service for this applicant.  The applicant's adjusted ETS for the 454 days lost was 2 April 1970.  The applicant did make good his lost time. 

3.  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.  He had three special court martial convictions and four NJPs under the provision of Article 15, UCMJ.  These convictions and his misconduct render his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

4.  The applicant contends that his birth date is incorrect on his DD Form 214.  The DD Form 214 of record shows an administrative correction in Item 30 (Remarks) as "SM's Birth date 20 Aug 49 not as shown Item #9"; therefore, there is no error as it was corrected when initially prepared and authenticated on
10 April 1970.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily 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

__BI ____  ___TR___  __GP___  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.




_____ Bernard Ingold__________
          CHAIRPERSON




INDEX

CASE ID
AR20070004703
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070004703
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.02
2.

3.

4.

5.

6.