RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  5 February 2008
	DOCKET NUMBER:  AR20070012425 


	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 J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Mr. Antonio Uribe

Member

Mr. Ronald D. Grant

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 general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that since his separation from the service he has been a better person and a good citizen.  He states that he discovered that if he had been a good person in the community and had no criminal record he could have his discharge upgraded. 

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty), with the period ending 28 October 1975; a Commonwealth of Puerto Rico Certificate of No Penal Record, dated 26 February 2007; a memorandum from Headquarters, U.S. Army Training Center and Fort Dix, dated 28 October 1975; and a General Discharge Certificate, dated 28 October 1975.

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 enlisted in the Regular Army on 21 September 1973, for a two year term of service.  He successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 13B (Cannoneer).

3.  On 22 November 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 4 August 1974 through 22 September 1974.




4.  On 1 October 1975, the applicant was convicted, pursuant to his plea, by a special court-martial of two specification of being AWOL for the periods 9 April 1975 through 25 April 1975 and 22 May 1975 through 7 September 1975.  His sentence consisted of a reduction to the grade of Private (PVT)/E-1, a forfeiture of $175.00 pay per month for one month, and confinement at hard labor for 
21 days. 

5.  On an unknown date the applicant's commander initiated a request for discharge for unsuitability under the provisions of chapter 13 of Army Regulation 635-200. 

6.  On 30 September 1975, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13.  The applicant declined counsel, waived his right to be heard by a board of officers, and declined to submit a statement on his own behalf.

7.  On 8 October 1975, the applicant’s commander signed an elimination packet and a waiver of rehabilitative transfer on the applicant for separation under the provisions of Army Regulation 635-200, chapter 13 for unsuitability.  The reasons cited by the commander were the evidence that the applicant displayed character or behavior disorder and he had been AWOL twice, for 124 days.  

8.  On 16 October 1975, the appropriate authority approved the elimination packet and waiver of rehabilitative transfer recommendation and directed the applicant receive a general under honorable conditions discharge under the provisions of chapter 13 of Army Regulation 635-200 for unsuitability.  On 
28 October 1975, the applicant was discharged from the service after completing 1 year, 9 months, and 7 days of creditable active service with 124 days of lost time due to AWOL and confinement.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect, contained the policy and outlined the procedures for separating individuals for unsuitability.  It states, action will be taken to separate an individual for unsuitability when it is clearly established that it is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory Soldier.




10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his post service should be taken in consideration of upgrading his discharge.  However, good post service conduct alone is not a basis for upgrading a discharge.  Upon review, the post service conduct of the applicant is not sufficient to mitigate his misconduct. 

2.  Evidence of record shows that the applicant received one Article 15, that he was convicted by special court-martial, and that he was AWOL on three separate occasions.  The applicant had completed only 1 year, 9 months, and 7 days of active creditable service of his two year term of service with a total of 124 lost days due to AWOL and confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel that are required for issuance of an honorable discharge.

3.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  Therefore, it is concluded that the applicant’s discharge was proper and equitable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KLW__  ___AU    _  ___RDG_  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.




____ Ronald D. Grant __
          CHAIRPERSON
















































CASE ID
AR20070012425
SUFFIX

RECON

DATE BOARDED
5 FEBRUARY 2008
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.0136.0000
2.

3.

4.

5.

6.


INDEX