IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20080004833 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge be upgraded.

2.  The applicant states, in effect, that he was young at the time and believes he should not have received an undesirable discharge.  He also states that he can not receive benefits until he gets a better discharge.

3.  The applicant provides no additional documentation in support of this case.

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 was born on 6 October 1955.  He enlisted in the Regular Army on 5 January 1973 for a three year term of service.  He successfully completed basic training and did not complete advanced individual training.  

3.  On 2 February 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) and for unlawfully striking a fellow Soldier.

4.  On 20 March 1973, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty.

5.  On 11 April 1973, the applicant accepted NJP under Article 15, UCMJ for wrongfully engaging in a fight with a fellow Soldier.

6.  On 27 March 1973, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty and wrongfully using provoking words towards a fellow Soldier.

7.  Evidence of record shows that the applicant was in military confinement during the period 12 May 1973 through 12 June 1973.

8.  On 5 June 1973, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 13 for unfitness.  The reasons cited by the commander were the applicant's repeated incidents of misconduct and his total disregard of military authority.

9.  On 5 June 1973, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant declined to submit a statement on his own behalf.

10.  On 6 June 1973, the applicant was barred to reenlistment for unsatisfactory performance and repeated acts of misconduct.  He did not desire to submit a statement on his own behalf.

11.  On 19 June 1973, the appropriate authority approved the recommendation and directed the applicant receive an Undesirable Discharge Certificate under the provisions of chapter 13 of Army Regulation 635-200 for unfitness.  On 
27 June 1973, he was separated from the service after completing 4 months and 21 days of creditable active service with 32 lost days due to confinement.
12.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 10 May 1977, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB unanimously voted that the applicant's discharge was proper and equitable.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect, contained the policy and outlined the procedures for separating individuals for unfitness when they were involved in frequent incidents of a discreditable nature with civil or military authorities and it was established that further efforts at rehabilitation were unlikely to succeed or they are not amenable to rehabilitation measures.

14.  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.

15.  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 was young at the time and that he can not receive benefits until he gets a better discharge.  Records show that the applicant was age 17 years and 3 months at the time his active service began and age 17 years, 8 months, and 22 days at the time of his discharge.  After his first Article 15, he should have known there would be consequences for his actions.  Therefore, his contention that he was young at the time of his offenses does not mitigate his indiscipline.  Furthermore, the ABCMR does not upgrade military discharges or correct military records solely to make former Soldiers eligible for veterans benefits.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  Evidence of record shows that the applicant received four Article 15s and was confined by military authorities.  The applicant had completed only 4 months and 21 days of active creditable service of his three year term of service with a total of 32 lost days due to confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel that are required for issuance of an honorable or general discharge.

4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  Therefore, it is concluded that the applicant’s discharge was proper and equitable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx ___  ___xx __  ___xx __  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.



      ___             xxx ___
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004833



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ABCMR Record of Proceedings (cont)                                         AR20080004833



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