RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2008
	DOCKET NUMBER:  AR20070016306 


	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. Judy Blanchard

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Rowland C. Heflin

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 discharge be upgraded to a least a general discharge.

2.  The applicant states, in effect, that he served 3 years in the United States Army, including a tour in Germany and Okinawa.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 
23 July 1965, for a period of 3 years.  He completed the required training and was awarded Military Occupational Specialty (MOS) 63B (Wheel Vehicle Mechanic).  The highest grade he attained was pay grade E-3.  

3.  On 1 April 1966, the applicant accepted nonjudicial punishment (NJP) for disobeying a lawful order by missing bed check.  His imposed punishment was a forfeiture of $18.00 pay and 14 days restriction. 

4.  On 8 August 1966, the applicant was convicted by a Summary Court-Marital (SCM) of stealing an M-14 rifle valued of about $200.00, property of the United States government and two specifications of being absent without leave (AWOL) from 15 to 19 July 1966 and from 22 July to 3 August 1966.  He was sentenced to a reduction to pay grade E-1, a forfeiture of $50.00 pay and to perform hard labor without confinement for 45 days.

5.  On 9 September 1966, the applicant was convicted by a SCM of two specifications of being AWOL from 9 to 10 August 1966 and from 23 to 28 August 1966 and for one specification of escape from lawful confinement.  He was sentenced to confinement at hard labor for 15 days (suspended for 30 days).

6.  Between October 1966 and November 1967, the applicant accepted seven NJP’s for five incidents of leaving his appointed place of duty without proper authority, for two incidents of the wrongful appropriation of civilian shoes and a roll of quarters valued at $10.00 and two incidents of being AWOL from 28 to 31 July 1967 and from 1 to 4 November 1967.  His punishment included reductions, forfeitures, restrictions and extra duties.  

7.  On 4 June 1968, the applicant was convicted by a Special Court-Martial of two specifications of being AWOL from 2 to 6 May 1968 and from 10 to 17 May 1968, for failure repair and for breaking restriction.  He was sentenced to a forfeiture of $64.00 pay per month for 6 months. 

8. On 11 July 1968, the applicant was evaluated by a psychiatrist.  The applicant was found 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.   

9.  On the same day, a medical evaluation found the applicant physically fit for retention or separation. 

10.  On 19 July 1968, the applicant was advised by the unit commander that he was being recommended for discharge under the provisions of Army Regulation 635-212, by reason of unfitness.  The applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel.  The applicant did not submit a statement in his behalf.

11.  On 22 August 1968, the separation authority directed the applicant’s separation under the provisions of Army Regulation 635-212 for unfitness and that he receive an Undesirable Discharge Certificate.  On 4 September 1968, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to him at the time, confirms the applicant completed a total of 2 years, 7 months and 23 days of creditable active military service and 194 days of time lost due to AWOLs and confinement.

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An undesirable discharge was normally considered appropriate for members separating under these provisions. 

13.  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.

14.  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.

15.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s military record shows that he had an extensive disciplinary history of military infractions and based on his record of indiscipline, the applicant's service clearly shows his discharge was appropriate.  The quality of the applicant’s service was not consistent with the Army’s standards for acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to an upgrade of his discharge.

2.  The evidence of record confirms his unit commander notified the applicant of the contemplated separation action and that he consulted with legal counsel.  It further shows that after being advised of the basis for the contemplated separation action and its possible effects, he voluntarily elected to waive his right to have his case considered by a board of officers and he elected not to submit a rebuttal statement in his own behalf. 

3.  After carefully evaluating the evidence of record in this case, it is determined that the applicant’s discharge processing was conducted in accordance with law and regulations applicable at the time and that the character of his service is commensurate with his overall record of military service.  The evidence of record confirms that the applicant’s rights were fully protected throughout the separation process.

4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met; and the rights of the applicant were fully protected throughout the separation process.  

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MDM__  __RCH_  ___JCR _  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.





____Mark D. Manning________
          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.