RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  11 March 2008
	DOCKET NUMBER:  AR20070008376 


	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. Frank C. Jones, II

Chairperson

Ms. Carmen Duncan

Member

Mr. Scott W. Faught

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.

2.  The applicant states that his discharge was too harsh and that at the time of his discharge, he was doing a good job.

3.  The applicant provides his résumé as additional documentary evidence in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests consideration of the applicant's request and to be informed of all actions taken in this case.

2.  Counsel provides no statement on the applicant's behalf.

3.  Counsel provides the following as additional documentary evidence in support of this application:

	a.  a letter and card from the American Red Cross which show the applicant completed classes in Cardio Pulmonary Resuscitation/Automated External Defibrillator (CPR/AED) and First Aid;

	b.  copies of the applicant's Commonwealth of Massachusetts Journeyman Electrician and Master Electrician licenses; and

	c.  a copy of the applicant's criminal history from the Commonwealth of Massachusetts 

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 complete military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's available record shows he enlisted in the Army at the age of 18, entered active duty on 6 January 1955, and was discharged on 31 July 1957.  He completed initial entry training at Fort Dix, New Jersey and Airborne training at Fort Benning, Georgia prior to being assigned to the 77th Special Forces Group at Fort Bragg, North Carolina in July 1955.  The highest rank the applicant attained while serving on active duty was private first class/pay grade E-3.

4.  The applicant's DD Forms 113 (Military Pay Record) reveals a disciplinary history that includes being absent without leave (AWOL) for a period of 5 days which resulted in punishment under Summary Court-Martial.  The DD Forms 
113 also show the applicant was AWOL for periods of 27 days, 7 days, and 
3 days which all resulted in punishment under Special Courts-Martial.  The applicant's punishments included restriction, forfeiture of pay, reduction in pay grade, and military confinement.

5.  The record shows the applicant had a total of 123 days of time lost due to 
42 days AWOL and 81 days in military confinement.

6.  NA Form 13038 (United States of America Certification of Military Service) shows the applicant's service was terminated by an undesirable discharge.

7.  On 8 November 1981, the applicant submitted a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) requesting an upgrade of his discharge.

8.  On 17 November 1982, the Army Discharge Review Board informed the applicant that his discharge had been reviewed as required by Public Law 
95-126.  As a result of this review, the board determined that he had been properly discharged and his request for a change in the type and nature of his discharge was denied.


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.  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's contention that his discharge should be upgraded based on the fact it was too harsh was carefully considered and determined to be without merit.

2.  Although there are no details on the facts and circumstances leading to the applicant's discharge in the available records, the preponderance of available evidence supports presumption of regularity in the discharge process.

3.  The applicant’s available record reveals a disciplinary history that includes being AWOL on four occasions during his first 24 months of service.

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.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a discharge under honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_FCJ____  _CD___  _SWF____  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.




__Frank C. Jones, II__
          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.