RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  15 January 2008
	DOCKET NUMBER:  AR20070012796 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway 

Chairperson

Mr. Joe Schroeder

Member

Mr. Qawiy A. Sabree

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 (UD), characterized as under other than honorable conditions (UOTHC), be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his UD should be upgraded to honorable due to his age and education level.  At the time of his induction, he was supporting his family.  After basic training, he was told that he did not pass and would have to go through two more months of training.  He states that he had hardship papers in his locker for 2 months but did not turn them in thinking that he would make more money after basic training.  

3.  The applicant provides no additional documentation in support of his request. 

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 record shows he was inducted on 12 August 1965, at the age of 18 years, 4 months, and 15 days, with an eighth grade education.  His date of birth (DOB) is 28 March 1947.  He successfully completed basic combat training and advanced individual training at Fort Knox, Kentucky.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 11B, Light Weapons Infantryman.

3.  Item 32 (Civilian Education), of his DA Form 20 (Enlisted Qualification Record), shows that he completed the eighth grade in 1964, at Long Beach Junior High School, in Long Beach, Mississippi.



4.  The applicant was convicted by three special courts-martial of being AWOL (absent without leave) from 23 November to 28 November 1965, from 2 December 1965 to 24 January 1966, from 31 May 1966 to 4 August 1966, and from 13 November 1966 to 14 February 1967.  His sentences consisted of confinement at hard labor and forfeitures of pay.

5.  Item 44 (Time Lost), of the applicant's DA Form 20 (Enlisted Qualification Record), shows an additional period of AWOL from 18 April to 20 April 1966. 

6.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant’s DD Form 214 shows that on 10 April 1967, he was discharged in pay grade E-1 under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature with civil or military authorities.  He was furnished an undesirable discharge.  He had a total of 5 months and 13 days of creditable service and 436 days of time lost due to being AWOL and in confinement. 

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

8.  Army Regulation 635-212, 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.

9.  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.

10.  Army Regulation 635-200, paragraph 3-7a, also provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.


DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  All the facts and circumstances pertaining to his discharge are unavailable for review. 

3.  The Board noted that the applicant’s record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason for the applicant's discharge and the characterization of his service and the Board presumed Government regularity in the discharge process.  

4.  The applicant states, in effect, that his UD should be upgraded to an honorable discharge due to his age and educational level.  He was 18 years, 4 months, and 15 days of age, with an eight grade education, at the time of his entry on active duty.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who served successfully and completed their term of service.  

5.  The applicant alleges, at the time of his induction, that he was:  supporting his family; that after basic training, he did not pass and would have to go through two more months of training; and that he had hardship papers in his locker for 2 months and did not turn them in, thinking that he would make more money after basic training.  However, there is no evidence, and he has provided none, to support his allegations.  

6.  The evidence of record clearly shows that it has been 40 years, or more, since he received his UD, characterized as UOTHC.  However, there is no evidence in the applicant's records, and the applicant has provided no evidence, to show that he attempted to or applied for an upgrade of his discharge to the ADRB within that board's 15-year statute of limitations.

7.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD, characterized as UOTHC, to an honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__QS____  ___JS___  __QS___  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.




______Curtis L. Greenway ________
          CHAIRPERSON




INDEX

CASE ID
AR20070012796
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080115
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19670410
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.