RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 November 2007
	DOCKET NUMBER:  AR20070008158 


	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 L. Engle

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Lester Echols

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, in effect, that his undesirable discharge be upgraded to general.   

2.  The applicant states that he completed his high school equivalency and graduated from a technical school with a 4.0 grade average.  He then became a master electrician.  He is trying to improve his life and getting his discharge upgraded would be one more step up.

3.  The applicant provides no additional documentation.

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.  On 28 April 1969, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 67N2O (UH-1 Helicopter Repairman).

3.  On 20 June 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for willful failure to obey a lawful order.  The punishment included reduction to private, pay grade E2, and a forfeiture of $28.00 pay per month for 1 month.

4.  On 9 July 1970, the applicant accepted NJP for willful failure to obey a special order.  The punishment included a forfeiture of $50.00 pay per month for 
2 months (suspended). 



5.  On 24 August 1970, the applicant accepted NJP for willful failure to obey a lawful order and for being absent without leave (AWOL).  The punishment included reduction to private (pay grade E-1), a forfeiture of $30.00 pay per month for 1 month, and 45 days extra duty.

6.  The applicant went AWOL from 19 September 1970 to 13 April 1971.

7.  On 21 April 1971, the applicant underwent a psychiatric evaluation.  The applicant's mental status was found to be within normal limits and it was determined that he knew the nature and quality of his acts and was mentally responsible.    

8.  On 4 May 1971, the applicant was convicted by special court-martial of AWOL during the period from 19 September 1970 to 13 April 1971.  His sentence consisted of confinement at hard labor for 4 months and a forfeiture of $50.00 per month for 4 months.

9.  On 18 May 1971, the commander advised the applicant of his intention to recommend him for separation from the service under the provisions of Army Regulation 635-212 for unfitness.  He was informed of his right to request appointment of military counsel, to have his case heard before a board of officers, and to submit statements in his behalf.  The applicant waived his rights.

10.  On 28 May 1971, the applicant’s commander recommended that the applicant be separated from the Army due to unfitness, under the provisions of Army Regulation 635-212.  The commander recommended that an Undesirable Discharge Certificate be issued.

11.  The appropriate authority approved the recommendation for discharge on 
14 June 1971, and directed that he be issued an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged under conditions other than honorable on 
28 June 1971.  He had completed 1 year, 7 months and 2 days of creditable active service and had 209 days of lost time due to AWOL and confinement.

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



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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge and the reasons therefore were appropriate considering all of the facts of the case.

2.  The applicant’s reported post-service accomplishments are noted.  However, this does not sufficiently mitigate his repeated acts of indiscipline during his military service.

3.  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 has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the above, the applicant’s request should not be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ JEA __  __LE  ___  __JCR   _  DENY APPLICATION










BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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. Anderholm ____
          CHAIRPERSON




INDEX

CASE ID
AR20070008158
SUFFIX

RECON

DATE BOARDED
20071101
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19710614
DISCHARGE AUTHORITY
AR 635-212. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.