RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070008641 


	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:


Ms. Linda D. Simmons

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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 that he was young and too angry at the time he was confined and chose to be discharged instead of staying in the Army.  He further adds that he has matured throughout the years and if he could do it all over again, he would not make the same mistakes he made during his military service. 

3.  The applicant provided a copy of his DD Form 214 (Report of Separation from Active Duty) 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 was born on 11 July 1953 and enlisted in the Regular Army, at the age of 18, on 30 November 1971.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71B (Clerk Typist).  The highest rank he attained during his military service was private first class/pay grade E-3.

3.  The applicant's records show that he was awarded the National Defense Service Medal, the Expert Marksmanship Qualification Badge with Grenade Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar during his military service.  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 12 April 1972, for failing to go to his appointed place of duty on 10 April 1972.  His punishment consisted of forfeiture of $74 pay for one month, 7 days of restriction, and 7 days of extra duty, to run concurrently.

	b.  On 21 September 1973, for disobeying a lawful order on 17 September 1973.  His punishment consisted of 7 days of extra duty, reduction to the grade of private/E-2 (suspended for 60 days), and 7 days of restriction.

5.  The applicant's DA Form 24 (Service Records) reveals two occasions of absence without leave as follows during the periods 8 January 1974 through 9 January 1974 and 5 March 1974 through 10 March 1974, as well as one occasion of confinement during the period 18 March 1974 through 23 May 1974. 

6.  On 8 February 1974, the applicant's commander approved a Bar to Reenlistment Certificate against the applicant for repeated discreditable acts.

7.  On 18 March 1974, the applicant pled guilty at a Special Court-Martial for one specification of assault against another Soldier on 23 February 1974 and one specification of being AWOL during the period on or about 5 March 1974 through on or about 11 March 1974.  The Court sentenced the applicant to reduction to the grade of private/pay grade E-1, forfeiture of $217 pay for three months, and confinement at hard labor for 85 days.

8.  On 24 June 1974, the applicant's immediate commander initiated separation action against the applicant for unfitness, under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) citing his long history of indiscipline. 

9.  On 24 June 1974, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  

10.  On 24 June 1974, the applicant's intermediate commander recommended approval of the applicant's separation

11.  On 12 July 1974, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged and his characterization of service was under other than honorable conditions.  This form further confirms that he completed a total of 2 years, 5 months, and 3 days of creditable active military service and 74 days of lost time

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

13.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a)  frequent incidents of a discreditable nature with civil or military authorities; b)  sexual perversion; c)  drug addiction; d)  an established pattern of shirking; and/or e)  an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

14.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The Army has never had a policy where a discharge was upgraded due to passage of time or maturity of the individual.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  

3.  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) on 2 occasions and one instance of trial and conviction by Special Court-Martial.  

4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  The applicant's discharge was in accordance with applicable regulation and 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.

5.  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 a general discharge or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __swf___  __rsv___  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.



							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070008641
SUFFIX

RECON

DATE BOARDED
20071025
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19740716
DISCHARGE AUTHORITY
AR 635-200, Chap 13
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.