RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070014929 


	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. Patrick H. McGann, Jr.

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. Michael J. Flynn

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 he does not believe the circumstances surrounding his Undesirable Discharge were dishonorable and that it is unjust to be continually punished because, at the time of his discharge, he was diagnosed with having several mental disorders.  He did "borrow" the car, but he was mentally impaired and lacked good judgment.  He concludes that he was young at the time.  Now he is homeless and in light of his struggle with mental illness, he deserves an honorable discharge.

3.  The applicant did not provide any additional 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 record shows that he was born on 20 August 1947 and enlisted in the Regular Army, at the age of 17 with parental consent, on 27 August 1964 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 111 (Light Weapons Infantryman).  The highest rank he attained during his military service as private/E-1.

3.  The applicant's records show that he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-1).  His record does not show any significant acts of valor during his military service.


4.  The applicant's record reveals a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on 13 October 1964 for being absent without leave during the period on or about 10 October 1964 through on or about 12 October 1964.  His punishment consisted of forfeiture of $8 pay and 14 days of extra duty.

5.  Section 6 (Time Lost) of the applicant’s DA Form 24 (Service Records) shows, in addition to the period of AWOL from 10 October 1964 to 12 October 1964, multiple entries of AWOL and confinement during the following periods:

	a.  3 January 1965 through 4 January 1965, AWOL, 2 days;

	b.  18 January 1965 through 20 January 1965, AWOL 3 days;

	c.  23 January 1965 through 24 January 1965, AWOL, 2 days;

	d.  25 January 1965 through 25 January 1965, Confined,1 day;

	e.  26 January 1965 through 30 May 1965, Civil Confinement 124 days;

	f.  1 June 1965 through 2 June 1965, AWOL, 2 days; and

	g.  3 June 1965 through 16 June 1965, AWOL, 16 days.

6.  On 25 January 1965, an investigation was initiated by the Criminal Investigation Division (CID), Office of the Provost Marshal, Fort Polk, Louisiana, upon receipt of information from the Military Police Operation that the applicant verbally admitted to stealing an automobile in Shreveport, Louisiana.  Investigation revealed that, on 20 January 1965, while in AWOL status, the applicant admittedly stole a car, valued at $700.  The applicant drove the car and abandoned it the next day.  He was arrested by civil authorities and held in confinement in Shreveport, Louisiana.  

7.  On 29 January 1965, the applicant pled guilty and was convicted of theft in Shreveport, Louisiana.  He was sentenced to 1 year confinement at hard labor in the Louisiana State Penitentiary.  The applicant’s Service Record shows that he was confined by civil authorities from 26 January 1965 to 30 May 1965.

8.  On 10 May 1965, the applicant’s immediate commander forwarded a memorandum to the Commander, U.S. Army Garrison, Fort Polk, Louisiana, recommending the applicant's elimination from the Army for misconduct in 
accordance with Army Regulation 635-206 (Personnel Separations).  He based his recommendation for separation on the applicant’s civil conviction for theft.  He further recommended an undesirable discharge.  

9.  On 11 May 1965, by endorsement to the Commanding General, Fort Polk, Louisiana, the Commander, U.S. Army Garrison, concurred with the immediate commander's recommendation and recommended the applicant's discharge for misconduct with an undesirable discharge.

10.  On 21 May 1965, the separation authority waived board action and approved the applicant's elimination from the Army and directed that he receive an Undesirable Discharge Certificate under the provisions of Army Regulation    635-200 by reason of conviction by civil court.  Accordingly, the applicant was discharged on 16 June 1965.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed 6 months of creditable active military service with 151 days of lost time due to AWOL and confinement.

11.  There is no indication in the applicant’s record that he was diagnosed for mental disorder or psychiatric problems.  

12.  There is no indication in the available record which shows he applied to the Army Discharge Review Board within its 15-year statute of limitations. 

13.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Section VI of the regulation provided, in pertinent part, for the separation of personnel for conviction by civil court.  An undesirable discharge was normally 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.

15.  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 available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.  Additionally, there is no evidence that the applicant was diagnosed with or treated for mental disorder during his military service.

3.  Evidence of record shows that the applicant’s quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service includes acceptance of nonjudicial punishment, multiple periods of AWOL, a conviction by civil court, and confinement.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reason for separation are appropriate considering all the facts of the case.

4.  The applicant has not submitted any substantiating evidence to show that the actions taken in his case were in error or unjust.  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.  In view of the foregoing, there is no basis to grant the applicant's request

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The ABCMR recommends the applicant consult with his local Veterans Administration for information regarding any benefits he may be entitled to.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__phm___  __ecp___  __mjf___  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.



						Patrick H. McGann, Jr.
______________________
          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.