RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070008152 


	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. Rial D. Coleman

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 discharge be upgraded.

2.  The applicant states that his actions as a young man were not a true reflection of the type of person he was.  The applicant continues that because he was not assigned a specific job or told to report to a specific supervisor, he believed he could come and go freely.  He also states that his age, immaturity, and difficulties in his personal life were the cause of the indiscipline which resulted in his discharge.  The applicant concludes that he has grown up and become a productive citizen.

3.  The applicant provides four character references as additional documentary evidence in support of this 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 he enlisted in the Army at the age of 17, entered active duty on 26 September 1972, and served until his separation on 
29 January 1974.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded the military occupational specialty 76Y (Armorer & Unit Supply Specialist).  The highest rank he attained while serving on active duty was private second class/pay grade E-2.

3.  The record reveals a disciplinary history that includes trial by summary court-martial for being absent without leave (AWOL) during the periods 17 March 1973 to 21 March 1973 and 2 April 1973 to 23 April 1973.  The record also includes the applicant's acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for the following offenses:  failure to report to his appointed place of duty at the prescribed time on 29 April 1973 and for being AWOL during the period 
19 October 1973 to 23 October 1973.  Punishments included reduction in grade, a forfeiture of pay and allowances, restriction, extra duty, and confinement in the hands of military authorities.

4.  Headquarters, 1st Cavalry Division, Fort Hood, Texas Special Orders Number 237, dated 12 December 1973, show that the applicant returned to military control following an AWOL status after being dropped from the rolls of his assigned organization.

5.  Headquarters, 1st Cavalry Division, Fort Hood, Texas Special Orders Number 017, dated 23 January 1974, assigned the applicant to the Adjutant General Transfer Point United States Army Garrison Fort Hood, Texas for the purpose of separation processing with a reporting date of 29 January 1974.

6.  Headquarters, III Corps and Fort Hood, Fort Hood, Texas Special Orders, dated 29 January 1974, discharged the applicant under the provisions of paragraph 13-5a(1) of AR 635-200 (Personnel Separations) effective 
29 January 1974.  The orders show the type of discharge as "UNDER OTHER THAN HONORABLE CONDITIONS" for the reason of "Unfitness."

7.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

8.  Army Regulation 635-200, in pertinent part, 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.

9.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an honorable discharge based on his allegation that his indiscipline was caused by his youth and immaturity at the time of his military service was carefully considered and determined to be without merit.

2.  Records show that the applicant was 17 and 18 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Evidence of record shows that the applicant failed to report to his appointed place of duty at the prescribed time and was absent without leave for three separate periods of time.

4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JEV____  _TMR __  _JCR____  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
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.