RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 September 2007
	DOCKET NUMBER:  AR20070006382 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Laverne M. Douglas

Member

Mr. Jerome L. Pionk

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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that at the time he was young, immature, and was not aware of the consequences of his 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 2 February 1954.  He enlisted in the Regular Army on 2 December 1975 for a 3 year term of service.  He successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 36C (Lineman).

3.  On 8 January 1976, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using provoking words and gestures.

4.  On 8 April 1976, the applicant accepted NJP under Article 15, UCMJ for sleeping on guard duty.

5.  On 8 April 1976, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) for the period 11 June 1976 through 18 June 1976.



6.   A DD Form 458 (Charge Sheet), dated 8 July 1976, shows charges were preferred against the applicant for two specifications of disobeying a lawful order from a noncommissioned officer (NCO).

7.  On 26 July 1976, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

8.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  

9.  The applicant submitted a statement on his own behalf that stated, in effect, that he was not satisfied with the Army.  When he came into the Army he thought that he would be able to go to college classes at least half a day.  He later found out classes were only available at certain times of the year and that he wanted out of the Army and did not want to be part of it.  He came in to get an education, but all he got was headaches.  

10.  He further stated that he missed his family and that he could not afford to send money home and save on his salary.  If he could get a discharge he could be working and making more money and saving.  He wanted to be a professional tennis player, but he could not achieve that goal in the situation he was in.  

11.  On 19 August 1976, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an undesirable discharge and be reduced to the lowest enlisted grade. On 25 August 1976, the applicant was discharged from active duty and was issued an undesirable discharge after completing a total of 8 months and 17 days of creditable active service with 7 days of lost time due to AWOL.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges 

have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. 

13.  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.  

14.  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 and immature at the time of his misconduct.  However, records show that the applicant was 21 years, 10 months, and 1 day old at the time he entered active duty.  He was 22 years, 6 months, and 24 days old at the time of his discharge and by then should have been well aware of the Army's standards of conduct.  Therefore, his contention that he was young and immature at the time of his offenses does not mitigate his indiscipline in the Regular Army.

2.  Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The applicant's records show that he received three Article 15s and had one instances of AWOL during his enlistment.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WDP__  ___LMD_  ___JLP _   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.




____William D. Powers__
          CHAIRPERSON




INDEX

CASE ID
AR20070006382
SUFFIX

RECON

DATE BOARDED
25 SEPTEMBER 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.7900.0000
2.

3.

4.

5.

6.