RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 September 2007
	DOCKET NUMBER:  AR20070005773 


	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:


Mr. James Vick

Chairperson

Mr. Ronald Gant

Member

Mr. Rowland Heflin

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 a general discharge, under honorable conditions.

2.  The applicant states, in effect, that he was a good Soldier.  He did his job well, received excellent evaluations but did have a problem with going AWOL (absent without leave).  The bulk of his service was honorable.  He adds that he was a service member from age 17.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of his DA Form 20 (Enlisted Qualification Roster) 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 30 August 1966, at the age of 17 years, 5 months, and 5 days.  His date of birth is 26 March 1949.  The applicant successfully completed basic combat training at Fort Jackson, South Carolina, and attended advanced individual training at Fort Gordon, Georgia, for training in military occupational specialty (MOS) 72C, Switchboard Operator.  

3.  Between 5 January 1967 to 13 November 1967, he received nonjudicial punishment (NJP) on five occasions under Article 15, of the UCMJ (Uniform Code of Military Justice), for failing to go to his appointed place of duty; for
being AWOL from 3 to 4 July 1967, from 2 to 5 October 1967, and from 5 to 13 November 1967; and for disobeying a lawful order from a superior noncommissioned officer.  His punishments consisted of a reduction to pay grade E-2 and E-1, forfeitures of pay, and restriction and extra duties. 
4.  On 26 January 1968, the applicant was convicted by a summary court-martial of being AWOL from 2 to 4 January 1968.  His sentence consisted of confinement for 1 month and a forfeiture of pay.

5.  On 4 April 1968, the applicant was convicted by a special court-martial of being AWOL from 4 to 18 March 1968.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of pay for 6 months.

6.  Item 38 (Record of Assignments), of his DA Form 20, show that he received excellent conduct and efficiency ratings during the period 30 August 1966 to 22 March 1967 and unsatisfactory conduct and efficiency ratings during the period 28 March 1967 to 10 September 1968, the date of his discharge.

7.  On 6 May 1968, the applicant underwent a mental status evaluation.  He was diagnosed as having a passive-aggressive personality, characterized by a lack of impulse control.  The psychiatrist determined that he met retention standards of Army Regulation 40-501, chapter 3.  He was found to be mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The psychiatrist believed that he would not adjust to further military service and opined that further rehabilitative efforts probably would be non-productive.  The psychiatrist recommended administrative separation under the provisions of Army Regulation 635-212.

8.  On 23 May 1968, the applicant's commander advised the applicant he was taking action to separate him from the service under the provisions of Army Regulation 635-212, for unfitness.  He based his recommendation on his continuous and prolonged unauthorized AWOLs.  

9.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

10.  On 23 May 1968, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-212, for unfitness, prior to his ETS (expiration of term of service) date.

11.  On 27 August 1968, the separation authority approved the recommendation for the applicant's discharge and directed that he be furnished an undesirable discharge.  

12.  The applicant was discharged on 10 September 1968, in pay grade E-1. He had a total of 1 year, 7 months, and 20 days of total active service and had 141 days of lost time due to AWOL and confinement.  

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

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

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.

16.  Army Regulation 635-200, paragraph 3-7a, also provides that an honorable discharge is a separation with honor.  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 inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant had a pattern of shirking by having gone AWOL on five occasions and having received two courts-martial and five Article 15s, under the UCMJ, which contributed to his discharge, under the provisions of Army Regulation 635-212, for unfitness.  He was issued an undesirable discharge, characterized as UOTHC.

2.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.


3.  The applicant alleges that he was a good Soldier, did his job well, and received excellent evaluations.  His records show that he received excellent conduct and efficiency ratings during the period 30 August 1966 to 22 March 1967 and unsatisfactory conduct and efficiency ratings during the period 
28 March 1967 to 10 September 1968, the date of his discharge.  It is noted that his first Article 15, under the UCMJ, was administered on 5 January 1967, 4 months and 5 days after his enlistment.  

4.  The applicant alleges that he did have a problem with AWOL.  The evidence shows that he went AWOL on five occasions which is considered very excessive. He was diagnosed as having a passive-aggressive personality, characterized by a lack of impulse control and was recommended for discharge.  

5.  There is no evidence, and he has provided none, to show why or what caused him to go AWOL on so many occasions.  There is no evidence to show that he sought assistance for his problems with AWOL while serving on active duty.

6.  The applicant alleges that the bulk of his service was honorable.  The evidence shows that from the time of his enlistment to the administering of his first Article 15, under the UCMJ, his only honorable service consisted of 4 months and 5 days.  

7.  The applicant stated that he was a service member from age 17.  It is noted that he was 17 years, 5 months, and 5 days of age at the time of his enlistment and was 19 years, 5 months, and 15 days of age on the date of his discharge.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their terms of service.

8.  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 failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RCH___  __JEV___  __RG___  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.




_____James E. Vick_________
          CHAIRPERSON




INDEX

CASE ID
AR20070004991
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070919
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19660318
DISCHARGE AUTHORITY
AR 635-205
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100
2.

3.

4.

5.

6.