RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  8 November 2007
	DOCKET NUMBER:  AR20070007112 


	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:


Ms. Barbara J. Ellis

Chairperson

Mr. Jose A. Martinez 

Member

Mr. Chester A. Damian

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 or honorable discharge.

2.  The applicant states, in effect, that according to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his discharge was upgraded 8 years later to a general discharge.  If this is not the case, he is requesting that it be upgraded now to a general or honorable discharge.  He also states that he never received a corrected copy of his DD Form 214 and is requesting a corrected copy upgraded to the highest possible rating.

3.  The applicant provides a copy of his DD Form 214 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 9 September 1966.  He successfully completed basic combat training at Fort Polk, Louisiana, and attended advanced individual training at Fort Leonard Wood, Missouri, for training in military occupational specialty (MOS) 56C, Petroleum Storage Specialist.  He was promoted to pay grade E-2 on 9 January 1967.

3.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record), shows that he was AWOL (absent without leave) from 9 April 1967 to 13 April 1967 (5 days), from 17 April to 15 May 1967 (29 days), from 16  May to 28 May 1967 (13 days), and from 14 July 1967 to 4 December 1967 (144 days) .  He was confined from 31 May to 12 June 1967 (43 days) and from 5 December 1967 to 1 February 1968 (59 days).

4.  On 12 June 1967, the applicant underwent a mental status evaluation.  He was diagnosed as having an emotional instability reaction, chronic, moderate; manifested by rapidly and continuously fluctuating emotional attitudes, poor toleration of minor stress, immature judgement, and impaired motivation for military service.  Stress; mild. The psychiatrist indicated that he had a long history of a character and behavior disorder of the immaturity type.  He was found to be free from mental defect, disease, or derangement and was able to distinguish right from wrong and adhere to the right.  He was found to be mentally responsible and had the capacity to understand and participate in board proceedings.  There were no mental or physical defects that warranted admission to or final disposition through medical channels.  He was cleared psychiatrically for action deemed appropriate by command. 

5.  On 16 June 1967, the applicant was convicted by a special court-martial of being AWOL from 17 April 1967 to 28 May 1967.  His sentence consisted of confinement at hard labor for 6 month and a forfeiture of pay for 6 months.

6.  The applicant was reduced to pay grade E-1 effective 22 June 1967.

7.  On 27 December 1967, the applicant was convicted by a special court-martial of being AWOL from 14 July 1967 to 5 December 1967.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of pay for 6 months.

8.  On 18 December 1967, 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 two courts-martial and AWOL time.  

9.  On the same date, the applicant acknowledged the notification and after consulting with counsel, he waived his rights and elected not to submit a statement in his own behalf.

10.  On 15 January 1968, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-212, for unfitness.

11.  On 26 January 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 2 February 1968, in pay grade E-1.  He had a total of 9 months, and 4 days of total active service and had 293 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, 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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant had a pattern of shirking by having gone AWOL on three occasions and having received two courts-martial convictions.  These violations contributed to and served as a basis for his discharge under the provisions of Army Regulation 635-212, for unfitness.  He was issued a UD, characterized as UOTHC.

2.  The evidence of record shows that the applicant accumulated a total of 293 days of lost time due to frequent incidents of being AWOL and in confinement.  A cumulative absence from performing meaningful service of this duration is serious and there is insufficient evidence to show that he now deserves an upgrade of his discharge.  
3.  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.

4.  The applicant alleges that according to his DD Form 214 his discharge was upgraded after 8 years to a general discharge; however, the Army has never had a program by which discharges are automatically upgraded. 

5.  The evidence of record clearly shows that it has been 39 years, or more, since he received his UD, characterized as UOTHC.  However, there is no evidence in the applicant's records, and the applicant has provided no evidence, to show that he attempted to or applied for an upgrade of his discharge to the ADRB within that board's 15-year statute of limitations.

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD, characterized as UOTHC, to a general or honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__BJE __  ___CD___  __JAM__  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.




_____Barbara J. Ellis_____
          CHAIRPERSON


INDEX

CASE ID
AR20070007112
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071108
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19680202
DISCHARGE AUTHORITY
AR 635-212. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.