RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070008932 


	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, the oldest among his brothers and sisters, and had domestic problems which needed to be resolved.  He further adds that his parents were going through a difficult divorce which required him to stay home longer than his leave allowed.  The local police arrested him and he stayed in jail for over a month.  By the time he got back to his unit, he was reported as absent without leave (AWOL).  He concludes that after his discharge, he led an honest life and had since matured and deserves an upgrade of his discharge. 

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 was born on 16 May 1945 and enlisted in the Regular Army, with parental consent, on 12 July 1962.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Rifleman).  The highest rank he attained during his military service was specialist four/pay grade E-4.

3.  The applicant's records show that he was awarded the Parachutist Badge and Expert 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 DA Form 24 (Service Records) reveals multiple occasions of absence without leave as follows:  9 November 1964 through 28 November 1964; 2 January 1965 through 3 January 1965; and 4 January 1965 through 20 January 1965.  Additionally, the DA Form 24 shows the applicant was confined from 21 January 1965 through 22 February 1965. 

5.  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 16 August 1963, for being disrespectful to a superior officer on 14 August 1963.  His punishment consisted of 14 days of restriction and extra duties.

	b.  On 4 November 1964, for being AWOL on 1 November 1964.  His punishment consisted of 15 days of restriction and extra duties.

	c.  On 19 December 1964, for failing to go to his appointed place of duty on 18 December 1964.  His punishment consisted of 15 days of restriction.

6.  On 11 December 1964, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period from on or about 9 November 1964 to on or about 28 November 1964 and three specifications of breaking his restriction on 9 November 1964, 28 November 1964, and 2 December 1964.  The Court sentenced the applicant to forfeiture of $48 pay for 3 months, 30 days of hard labor without confinement, and reduction to the grade of private/E-1.

7.  On 26 January 1965, the applicant pled guilty at a Special Court-Martial to two specifications of being AWOL during the period from on or about 2 January 1965 to on or about 3 January 1965 and during the period from on or about 4 January 1965 to on or about 20 January 1965.  The Court sentenced the applicant to forfeiture of $75 pay for 6 months and 6 months of confinement at hard labor.

8.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued at the time of his discharge confirms he was discharged on 23 February 1965 for unfitness, under the provisions of Army Regulation 635-208 (Personnel Separations) and his characterization of service was under other than honorable conditions with issuance of an Undesirable Discharge Certificate.  This form further confirms that he completed a total of 2 years and 5 months of creditable active military service and 72 days of lost time.
9.  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.

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

11.  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.

12.  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.

13.  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.  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 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 3 occasions.  Additionally, the applicant's records show two instances of Special Courts-Martial.  

4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.  It is presumed in this case that the applicant's discharge was in accordance with applicable regulation and that 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
AR20070008932
SUFFIX

RECON

DATE BOARDED
20071025
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19650223
DISCHARGE AUTHORITY
AR 635-208
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.