RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 October 2007
	DOCKET NUMBER:  AR20070007608 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. John T. Meixell

Member

Mr. David W. Tucker

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 an upgrade of his discharge.

2.  The applicant states, in effect, that family hardships during his military service led to his indiscipline and prolonged period of unauthorized absence.

3.  The applicant did not provide any additional documentary evidence in support of his application. 

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 records show that he enlisted in the Regular Army on 26 April 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 36C (Lineman).  Records further show that he served in Germany during the period 31 August 1965 through 1 April 1967 and the highest rank he attained while serving on active duty was specialist/pay grade E-4.

3.  The applicant’s records show he was awarded the National Defense Service Medal.  The applicant's records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 7 March 1966, for failing to go to his appointed place of duty on an unknown date in March 1966.  His punishment consisted of 14 days of restriction and 14 days of extra duty.

	b.  On 30 July 1966, for violating a Standing Operating Procedure (SOP) by having civilian clothes in his wall locker on 30 July 1966.  His punishment consisted of oral reprimand, 7 days of extra duty, and 7 days of restriction. 

	c.  On 2 August 1966, for breaking restriction to the detachment area on 31 July 1966.  His punishment consisted of forfeiture of $15 pay, 14 days of restriction and 14 days of extra duty to run concurrently, and reduction to private first class/pay grade E-3.

	d.  On 11 October 1966, for wrongfully appropriating a V41-3/4 Truck, valued at $5,000 and property of the U.S. Government on 7 October 1966.  His punishment consisted of forfeiture of $28 pay and 14 days of extra duty.

	e.  On 16 February 1967, for wrongfully appropriating a government military vehicle 3/4 ton, valued at $2,500.  His punishment consisted of forfeiture of $19 pay and reduction to private/pay grade E-3.

5.  On 5 September 1967, the applicant pled guilty at a Special Court-Martial for being absent without leave (AWOL) during the period on or about 16 June 1967 through on or about 7 August 1967.  The Court sentenced him to confinement at hard labor for 6 months and reduction to the grade of private/pay grade E-1.

6.  On 5 June 1968, the applicant pled guilty at a Special Court-Martial for being AWOL during the periods on or about 12 November 1967 through on or about 5 February 1968, on or about 5 February 1968 through on or about 14 February 1968, and on or about 16 February 1968 through on or about 11 April 1968.  The Court sentenced him to confinement at hard labor for 6 months and forfeiture of $65 pay for 6 months.

7.  On 24 October 1969, charges were preferred against applicant for being AWOL during the period on or about 1 July 1968 through on or about 23 March 1969 and on or about 14 April 1969 through on or about 23 September 1969.

8.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial.



9.  On 19 November 1969, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 19 November 1969 under conditions other than honorable and was issued an Undesirable Discharge Certificate.  He had completed 
2 years, 6 months, and 7 days of creditable active military service.  The form further confirms that he had 150 days of lost time during his military service and 650 days of lost time subsequent to his expiration of term of service (ETS) date.

10.  The applicant's records do not reflect any instances or indication of family hardship or that the applicant was undergoing family hardship.  The records further do not show that the applicant addressed the issue of hardship with his chain of command or with any supporting agencies at the installation to which he was assigned. 

11.  On 6 January 1977, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

12  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A characterization under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7, 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.

14.  Army Regulation 635-200, paragraph 3-7, 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 his undesirable discharge should be upgraded.

2.  There is no evidence in the applicant's records that he was undergoing any family hardship during his military service or that his long and repeated patterns of misconduct and indiscipline were the result of family hardship.

3.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__js____  __jtm___  __dwt___  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.



							John Slone
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070007608
SUFFIX

RECON

DATE BOARDED
20071018
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19691119
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.