RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 January 2008
	DOCKET NUMBER:  AR20070010995 


	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. Andrew C. Jacobs

Analyst

The following members, a quorum, were present:


Ms. Ann M. Campbell

Chairperson

Mr. Dean A. Camarella

Member

Mr. Rodney E. Barber

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 an honorable or general discharge. 

2.  The applicant essentially states that at the time of his entry into the Army, he had a learning problem, and could not adjust or understand.  He also states, in effect, that he was a slow learner in school, and is now trying to be treated for mind problems and physical unableness.  He further states that he took the test for the Army three times.  He continues by stating that his health is not good, and that he cannot work to pay for his medical bills, and that he has no source of income.  He also states, in effect, that if he is not permitted to receive a fully honorable discharge, he would appreciate what help he can receive.  

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in support of this 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 military records show that he enlisted in the Regular Army on 18 June 1969.  He completed basic training at Fort Jackson, South Carolina, then was reassigned to Fort Rucker, Alabama for advanced individual training in military occupational specialty (MOS) 67A (Aircraft Maintenance Apprentice).  Although his conduct and efficiency ratings while at Fort Rucker were both excellent, he failed to complete AIT in MOS 67A for unknown reasons, and was reassigned to Fort Benning, Georgia in October 1969, where he was awarded MOS 94A (Food Service Apprentice).  

3.  On 2 April 1970, the applicant was convicted by a special court-martial for being disorderly in a Military Police station, and for wrongfully and without authority wearing upon his civilian hat the insignia of the rank of captain of the United States Army.  He was sentenced to forfeit $50.00 pay per month for 
1 month.

4.  On 29 April 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority from his unit from 18 April 1970 until on or about 21 April 1970, and for violating a lawful general regulation by appearing in public in a duty uniform without head gear.  His punishment consisted of placement in correctional custody for 30 days.   

5.  On 24 June 1970, the applicant went absent without leave (AWOL), but was arrested by the Phenix City, Alabama Police Department for driving while intoxicated in a stolen car on 25 June 1970.  He was convicted on 26 June 1970, and fined $150.00.  The applicant remained in civil confinement pending trial for car theft, but escaped from confinement on 27 July 1970.  On 1 August 1970, the applicant was admitted to Martin Army Hospital at Fort Benning, Georgia after being shot twice in the hand and thigh when he engaged in a fight with an unknown person while he was in an AWOL status.  He was returned to military control at that time.  

6.  On 28 August 1970, the applicant appealed NJP under Article 15 of the UCMJ for absenting himself from his unit on or about 24 June 1970, and remaining so absent until on or about 2 August 1970.  His punishment consisted of forfeiture of $50.00 pay per month for 1 month, and placement in correctional custody for 
30 days.  In his appeal, the applicant stated that he was in jail at the time he was AWOL and could not get back to his unit.  On 18 September 1970, the applicant’s appeal was denied.

7.  On 21 September 1970, a mental status evaluation was conducted on the applicant, and it was essentially determined that he had no psychiatric disease or any disqualifying mental defects sufficient to warrant disposition through medical channels.  He was also cleared for separation from the service under administrative action as deemed appropriate by his command.

8.  On 28 September 1970, the applicant’s commander informed him that he was being recommended for separation from the United States Army by reason of unfitness under the provisions of Army Regulation 635-212 (Discharge – Unfitness).  He was also advised of his rights.  The applicant acknowledged that he had been advised by counsel of the basis for contemplated action to accomplish his separation under the provisions of Army Regulation 635-212.  He also waived consideration of his case before a board of officers, as well as personal appearance before a board of officers.  He elected not to submit statements in his own behalf, and waived representation by counsel.  He also understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.

9.  On 29 September 1970, the applicant accepted NJP under Article 15 of the UCMJ for willfully disobeying a lawful order from his superior noncommissioned officer, and for being disrespectful in deportment and language toward his superior noncommissioned officer.  His punishment consisted of placement in correctional custody for 30 days, which was suspended for 90 days.  However, on 8 October 1970, the applicant’s suspended correctional custody for 30 days was vacated.

10.  On 13 November 1970, the proper separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness, and directed that he be furnished an Undesirable Discharge Certificate.  On 1 December 1970, the applicant was discharged accordingly.

11.  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.

12.  The applicant essentially stated that at the time of his entry into the Army, he had a learning problem, and could not adjust or understand.  He also stated, in effect, that he was a slow learner in school, and is now trying to be treated for mind problems and physical unableness.  He further stated that he took the test for the Army three times.  He continued by stating that his health is not good, and that he cannot work to pay for his medical bills, and that he has no source of income.  He also stated, in effect, that if he is not permitted to receive a fully honorable discharge, he would appreciate what help he can receive. 

13.  The applicant did not provide any evidence which shows that he had a learning problem.  It should be noted that the applicant’s conduct and efficiency ratings were all excellent prior to his offenses.  

14.  Army Regulation 635-212, in effect at the time, 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.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a provides, in pertinent part, 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.

16.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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 undesirable discharge should be upgraded to an honorable or general discharge.

2.  The applicant’s contention that he had a learning problem was noted; however, his conduct and efficiency ratings prior to his offenses were all excellent, which indicates that he possessed sufficient capability to complete training.  He also did not provide any evidence that he had a learning problem.  

3.  Notwithstanding the applicant’s contention that he had a learning problem, there is no correlation between his learning ability or lack thereof and his commission of multiple offenses of the UCMJ, which ultimately led to his undesirable discharge.  

4.  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 this requirement.

5.  Evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with applicable regulations and that his discharge accurately reflects his overall record of service.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  The evidence of record also confirms that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. 

6.  The applicant’s record of service shows that he was convicted by a special court-martial for being disorderly in a Military Police station and for wearing the rank insignia of captain on his civilian hat.  He also accepted NJP under Article 15 of the UCMJ on three occasions for multiple offenses of the UCMJ.  He also escaped from the custody of civil authorities, and was arrested for driving while intoxicated in a stolen vehicle.  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 either an honorable or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__AMC__  __DAC__  __REB   _  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.




___Ann M. Campbell          _
          CHAIRPERSON



INDEX

CASE ID
AR20070010995
SUFFIX

RECON

DATE BOARDED
20080103
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.5100.0000
2.

3.

4.

5.

6.