RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 February 2008
	DOCKET NUMBER:  AR20070013747 


	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:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

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 an upgrade of his discharge.

2.  The applicant states that his original problems were due to complications with his spouse’s pregnancy, and, in effect, the lack of support from his chain of command to assist him with those problems. 

3.  The applicant did not provide any documentary evidence in support of his 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 records show that he enlisted in the Regular Army on 9 March 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71B (Clerk Typist).  He was honorably discharged on 6 March 1974.  However, after a short break in service, he reenlisted in the Regular Army on 31 August 1974.  The highest rank he attained while serving on active duty was private first class/E-3.

3.  The applicant's records show that he was awarded the National Defense Service Medal.  The applicant's records do not show any significant acts of valor during his military service.

4.  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) as follows:


	a.  On 16 August 1972, for being absent without leave (AWOL) during the period on or about 11 August 1972 through on or about 14 August 1972.  His punishment consisted of reduction to the grade of private/E-1 and forfeiture of $40.00 pay for one month.
	
	b.  On 28 July 1975, for disobeying a lawful order on 28 July 1975.  His punishment consisted of reduction to the grade of private/E-2 (suspended for 60 days) and 14 days of extra duty.   He appealed the punishment to the next higher authority on 31 July 1975, but his appeal was denied.  Additionally, on 19 September 1975, the suspension of the punishment of reduction to private/  E-2, suspended for 60 days, was vacated.

c.  On 20 November 1975, for disobeying a lawful order on 17 October 1975 and for being AWOL during the period on or about 22 October 1975 through on or about 24 October 1975.  His punishment consisted of reduction to the grade of private/E-1 (suspended for 60 days) and 30 days of extra duty.  

d.  On 14 January 1976, for failing to go to his appointed place of duty on multiple occasions as follows: guard duty on 28 December 1975, morning formation on 29 December 1975, morning formation on 5 January 1976, and morning formation on 6 January 1976.  His punishment consisted of reduction to the grade of private/E-1 and 30 days of extra duty.  He appealed the punishment to the next higher authority on 22 January 1976, but his appeal was denied.

5.  On 21 November 1975, the applicant’s immediate commander initiated a bar to reenlistment against the applicant.  The immediate commander remarked that the applicant was a very immature individual who required constant supervision and counseling.  Additionally, he was unable to relate to a superior/subordinate relationship and had, on several occasions, flatly refused to obey orders.  The applicant elected not to submit a statement on his behalf and the battalion commander approved the bar to reenlistment on 21 November 1975.

6.  On 16 January 1976, the applicant's immediate commander notified the applicant of his intent to initiate action to effect his discharge from the Army under the provisions of paragraph 13-5 of Army Regulation 635-200 (Personnel Separations) for unsuitability.  The applicant acknowledged receipt of this notification on the same day.




7.  On 21 January 1976, the applicant’s immediate commander initiated a recommendation for the applicant’s elimination from the Army under chapter 13 of Army Regulation 635-200.  He cited the applicant’s unsuitability due to apathy. The immediate commander cited the applicant’s constant disciplinary problems, unsatisfactory conduct and efficiency, constant need for supervision, and inability to respond positively to rehabilitation.  

8.  On 24 February 1976, the applicant accepted more nonjudicial punishment under the provisions of Article 15 of the UCMJ for disobeying a lawful command from a commissioned officer on 19 January 1976.  His punishment consisted of forfeiture of $180.00 pay per month for two month and 45 days of extra duty.

9.  On 25 February 1976, the applicant consulted with counsel.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and waived representation by counsel.  He elected not to submit a statement in his own behalf and acknowledged that he may encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.

10.  On 17 March 1976, the separation authority approved the applicant's discharge from the Army for unsuitability and directed that he receive a General Discharge Certificate.  On 30 March 1976, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged with an Under Honorable Conditions character of service in accordance with chapter 13 of Army Regulation 635-200.  He had completed 3 years, 6 months, and 24 days of creditable active military service.

11.  There is no indication in the applicant’s records that he underwent family problems related to his spouse’s pregnancy.

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

13.  Army Regulation 635-200, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.   A general or honorable discharge was considered appropriate.  

14.  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 discharge should be upgraded.

2.  There is no evidence in the applicant’s records and the applicant failed to provide any evidence that shows he encountered family problems or that he addressed those problems with his chain of command or support organizations on the installation where he was stationed.  Additionally, there is no evidence that his acts of indiscipline resulted from any family problems.   

3.  Evidence of record shows the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.  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.  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 an honorable discharge.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __rml___  __qas___  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.




							William D. Powers
______________________
          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.