RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070013099 


	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. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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, in effect, that he was given permission by his captain to go home and attend to his ill mother; however, he was not provided leave papers. 

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 9 March 1966.

	b.  Several Character Reference Letters, with various dates, from a police officer, a sheriff, previous spouse, a circuit clerk, friends, acquaintances, a police department chief, employers, and county clerks.

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 inducted into the Army of the United States on 21 August 1964.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 67C (Single Engine Aircraft Mechanic).  The highest rank he attained during his military service was private/E-2.

3.  The applicant's records do not show any awards or decorations, or any significant acts of valor during his military service.


4.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) reveals multiple occasions of absence without leave (AWOL) as follows: 18 March 1965 through 18 April 1965; 6 July 1965 through 12 August 1965; and 26 August through 12 December 1965.  Additionally, Item 44 shows the applicant was confined from 19 April 1965 through 6 May 1965; 13 August 1965 through 25 August 1965; and 13 December 1965 through 8 March 1966.

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) on 10 May 1965 for being AWOL during the period on or about 18 March 1965 through on or about 18 April 1965.  His punishment consisted of a forfeiture of $30.00 pay per month for two months and 14 days of extra duty.

6.  On 20 August 1965, Court-Martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 6 July 1965 through on or about 18 July 1965.  

7.  On 17 January 1966, the applicant underwent a psychiatric evaluation at Fort Meade, Maryland.  The military medical officer remarked on the applicant’s various periods of AWOL and stated that the applicant displayed no motivation to return to duty.  The medical officer further recommended separation under appropriate administrative regulation.  

8.  On 7 February 1966, the applicant’s immediate commander initiated separation action against the applicant in accordance with Army Regulation   635-208 (Personnel Separations) by reason of unfitness.

9.  On 15 February 1966, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 6 July 1965 through on or about 14 July 1965; one specification of being AWOL during the period on or about 18 July 1965 through on or about 13 August 1965; and one specification of being AWOL during the period on or about 26 August 1965 through on or about 13 December 1965.  The Court sentenced him to confinement at hard labor for 6 months and a forfeiture of $62 pay per month for 6 months.  The sentence was adjudged on 21 April 1966 and approved on 21 February 1966.  

10.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, the DD Form the applicant was issued at the time of his discharge confirms he was discharged on 9 March 1966 for unfitness, under the provisions of Army Regulation 635-208 and his characterization of service was under other than honorable conditions.  This form further confirms that he completed 8 months and 23 days of creditable active military service and had 296 days of lost time due to AWOL and confinement.

11.  The applicant's records do not reflect any instances or indication of family hardship or illness.  The records further do not show that the applicant addressed the issue of his mother’s illness with his chain of command or with any supporting agencies at the installation to which he was assigned.

12.  The applicant submitted various character reference letters from several professionals, friends, neighbors, acquaintances, and others.  They all commented on his dependability, citizenship, honesty, and integrity. 

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

14.  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.

15.  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.

16.  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 a 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 UCMJ.  Additionally, his records show one instance of a Special Court-Martial.  

4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an 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.  The applicant's post-service work history, achievements since his discharge, and character reference letters are noted.  However, the U.S. Army has never had a policy where a discharge was upgraded due to passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable

6.  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

_ LCB___  __PMS __  _SLP ___  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.





____ Shirley L. Powell ____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.