RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070009521 


	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:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. James R. Hastie

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.   

2.  The applicant states that he does not believe that an injustice was done.  He did request the undesirable discharge.  However, he would appreciate it if the Board would consider the fact that he had requested a hardship discharge due to his father’s health; that his orders were held due to a nonjudicial punishment (NJP); and that he was immature and impatient causing him to go against his counsel’s advice by accepting the undesirable discharge.

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 August 1970, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 11B1O (Light Weapons Infantryman).

3.  On 8 February 1971, the applicant was assigned for duty as an assistant gunner with the 1st Battalion, 14th Infantry Regiment, in Hawaii.

4.  On 3 August 1971, the applicant accepted NJP under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to his place of duty at the prescribed time.  The punishment included reduction a forfeiture of $30.00 pay per month for 1 month (suspended), and 14 days restriction and extra duty.

5.  On 10 September 1971, the applicant accepted NJP for being AWOL (absent without leave) from 1 to 7 September 1971.  The punishment included reduction to private, pay grade E-2, forfeiture of $20.00 pay per month for 2 months, and 
30 days restriction and extra duty.

6.  On 22 October 1971, the applicant accepted NJP for sleeping on guard duty.  The punishment included reduction to private, pay grade E-1, and 7 days extra duty.

7.  On 2 November 1971, the applicant accepted NJP for being disrespectful in language toward a noncommissioned officer and for reporting for guard duty in the wrong uniform.  The punishment included forfeiture of $30.00 pay per month for 1 month, and 7 days correctional custody.

8.  On 30 November 1971, charges were preferred under the Uniform Code of Military Justice for violation of Article 121, larceny of about ten gallons of gasoline from the United States Army; and for two violations of article 134, breaking restriction.

9.  On 23 December 1971, an additional charge was preferred for violation of Article 86, AWOL, during the period from 17 to 22 December 1971.

10.  On 17 January 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

11.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   



12.  On 28 January 1972, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 28 February 1972, the applicant was discharged accordingly.  He had completed a total of 1 year, 3 months, and 27 days of creditable active military service and had accrued 35 days of time lost due to AWOL and confinement.

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

14.   Under the UCMJ, in effect at the time, the maximum punishment allowed for violation of Article 121, for larceny of military property valued less than $100.00 included a punitive discharge and confinement for 1 year.

15.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is 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.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  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 and lost time also renders his service unsatisfactory.

4.  There is no available evidence to show that he was denied a hardship discharge, had any mitigating circumstances or that his AWOL was a reasonable solution to them.  



5.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

 __JRH __  __ECP _  __LDS   _  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.






__     Linda D. Simmons __
          CHAIRPERSON




INDEX

CASE ID
AR20070009521
SUFFIX

RECON
 
DATE BOARDED
20071204
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19720228
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.