RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070013218 


	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. 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 that his discharge under conditions other than honorable be upgraded to general under honorable conditions. 

2.  The applicant states, in effect, that he was young and stupid.  He did not realize that what he did would follow him the rest of his life.  He asks for help, stating that he needs mercy, not justice.

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 31 October 1966, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 20 June 1967, the applicant was promoted to private first class, pay grade E-3.

4.  On 14 February 1968, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for AWOL (absent without leave) during the period from 27 November 1967 to 18 January 1968.  The punishment included reduction to private, pay grade E2; forfeiture of $53.00 pay per month for 2 months, and 14 days of restriction and extra duty.



5.  On 28 June 1968, the applicant was convicted by a special court-martial of AWOL during the period from 17 February to 12 June 1968.  His sentence consisted of reduction to private, pay grade E1; confinement at hard labor for 
5 months; and forfeiture of $68.00 pay per month for 5 months.  He served 
86 days in confinement. 

6.  On 9 December 1968, the applicant was convicted by a special court-martial of AWOL during the period from 19 September to 6 November 1968.  His sentence consisted of confinement at hard labor for 4 months and forfeiture of $73.00 pay per month for 4 months.  He served 131 days in confinement. 

7.  On 24 February 1969, applicant’s commander advised him that discharge proceedings had been initiated to eliminate him from the service because of his unfitness due to frequent incidents of a discreditable nature with civil or military authorities.   During the interview, the applicant was informed of his rights to present his case before a board of officers; to be represented by appointed counsel; and to submit statements in his own behalf.  

8.  On 25 February 1969, the applicant consulted with counsel and elected to waive consideration of his case by a board of officers; waive appearance before a board of officers; not make a statement in his own behalf; and waive representation by counsel.

9.  On 13 March 1969, the applicant was diagnosed with an antisocial personality disorder.  He did not work productively prior to entry in to the service and since his enlistment had gone AWOL on four different occasions.  Retention on active duty could be expected to result in continued ineffectiveness and disciplinary infractions.  When not confined to the stockade he had habitually consumed about a pint of alcohol per day and had been involved in frequent fights with men in his company.  He used poor judgment, was not committed to any productive goals, and was completely unmotivated for further service.  He was found to have no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The psychiatrist further stated that it was unlikely that the applicant would develop sufficiently to participate in further military training and/or become a satisfactory Soldier.  Further rehabilitative efforts would probably be non-productive.



10.  On 19 March 1969, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-212, for unfitness due to unfitness manifested by repeated instances of AWOL.  The commander further stated that the applicant had received two special courts-martial and one NJP.  He recommended that the applicant receive an Undesirable Discharge Certificate.  

11.  The applicant was again AWOL from 31 March to 2 April 1969 and from
10 April to 16 April 1969.

12.  The appropriate authority approved the recommendation for discharge and directed that he be issued an Undesirable Discharge Certificate.  

13.  Accordingly, on 7 May 1969, he was discharged with an undesirable discharge, characterized as under conditions other than honorable.  He had completed 1 year, 2 months, and 26 days of creditable active duty, and had 466 days of lost time due to AWOL and confinement.

14.  On 29 November 1978, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

15.  Army Regulation 635-212 (Personnel Separations), in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was 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.  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.

4.  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

__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
AR20070013218
SUFFIX

RECON
 
DATE BOARDED
20080129 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.