RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	17 April 2008  
	DOCKET NUMBER:  AR20070017394 


	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.









      The following members, a quorum, were present:


Mr. T.S. K.

Chairperson

Mr. J. P.

Member

Mr. D. T.

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 undesirable discharge be upgraded.

2.  The applicant states, in effect, that he was 17 years of age when he joined the U.S. Army and was young and foolish, but wanted to fight for his country.  The applicant also states that he was given the option of accepting an undesirable discharge and going home; however, had he been given counsel, he might have stayed in the Army.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 7 June 1972.

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 military service record contains a copy of a DD Form 373 (Consent, Declaration of Parent or Legal Guardian), dated 13 March 1971, that shows the applicant’s date of birth is 13 March 1954.  This document also shows that the applicant’s father and mother consented to his enlistment in the U.S. Army and certified their consent by placing their signatures on the form.

3.  The applicant's military service record shows that he enlisted and entered active duty in the Regular Army on 23 March 1971 for a period of 2 years.  At the time of his entry on active duty the applicant was 17 years of age.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Repairman). The applicant was promoted to the rank of private first class/pay grade E-3 with a date of rank of 23 November 1972.
4.  The applicant's military service record contains a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 30 November 1971.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 0730 hours, 26 November 1971, without authority, absenting himself from his unit, to wit:  Headquarters Company, 1st Battalion, 4th Advanced Individual Training Brigade, located at Fort Leonard Wood, Missouri, and remaining so absent until on or about 1000 hours, 29 November 1971.  The punishment imposed was forfeiture of $40.00 for 1 month.

5.  The applicant's military service record contains a copy of a DA Form 3545 (Deserter Wanted by the Armed Forces), dated 13 March 1972.  This document shows that the applicant departed absent without leave (AWOL) at 0700 hours, 16 February 1972, was dropped from the rolls (DFR) on 18 February 1972, apprehended by civil authorities on 29 April 1972, and returned to military control on 2 May 1972.

6.  The applicant's military service record contains a copy of a Fort Riley (FR) Form 1238L (Waiver to Right of Counsel) that shows Article 31 of the UCMJ (and Fifth Amendment of the Constitution of the United States) was read to the applicant, in the presence of a witness, by Specialist Four J_____, who informed the applicant that the form was being completed in conjunction with a violation of the UCMJ, Article 86, of which the applicant was suspected.  This document also shows it was explained to the applicant that he had the right to counsel, either civilian counsel retained at his own expense or an appointed qualified military defense counsel provided without cost, and that the counsel had the right to be at all interrogations if the applicant so desired.  This document further shows that the applicant indicated he understood his unqualified right and, on 5 May 1972, voluntarily and without duress, coercion, unlawful inducement or promise of reward, waived his right to counsel at that time.  This document further shows that the applicant and the witness placed their signatures on the document.

7.  The applicant's military service record is absent a copy of the applicant’s administrative separation action.

8.  The applicant's military service record contains a DA Form 20 (Enlisted Qualification Record).  Item 44 (Time Lost Under Section 972, Title 10, United States Code [USC] and Subsequent to Normal ETS) of this document shows the applicant was AWOL for 3 days from 26 November 1971 through 28 November 1971, AWOL for 29 days from 14 December 1971 through 11 January 1972, AWOL for 76 days from 16 February 1972 through 1 May 1972, and AWOL for
8 days from 31 May 1972 through 7 June 1972.
9.  The applicant's military service record contains a copy of Headquarters,
1st Infantry Division (Mechanized) and Fort Riley, Fort Riley, Kansas, Special Orders Number 158, dated 6 June 1972.  These orders show the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, and issued an Undesirable Discharge Certificate, effective 7 June 1972.

10.  The applicant's military service record contains a copy of his DD Form 214 that shows he was discharged on 7 June 1972, under other than honorable conditions, in accordance with the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service and issued Separation Program Number (SPN) “246.”  This document also shows that at the time of his discharge the applicant completed 10 months and 19 days net service during this period.  Item 30 (Remarks) of the DD Form 214 contains the entry, “116 days lost under Title 10 United States Code, Section 972:  from 26 Nov 71 thru 28 Nov 71; 14 Dec 71 thru 11 Jan 72; 16 Feb 72 thru 1 May 72; 31 May 72 thru 7 Jun 72.”

11.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

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

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of the Personnel Separations regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

14.  Army Regulation 635-5-1 (Separation Program Numbers (SPN)) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies the SPN of “246” as the appropriate SPN to assign enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial.
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, 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.

17.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded because he was young and foolish when he joined the U.S. Army and he was not offered counsel prior to accepting his undesirable discharge.

2.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who also served in the U.S. Army during this period of time and successfully completed their military service commitment.  In addition, the evidence of record shows the applicant indicated with his signature that he understood his unqualified right to counsel, and voluntarily and without duress, coercion, unlawful inducement or promise of reward, waived his right to counsel on 5 May 1972.

3.  The evidence of record confirms that the applicant was discharged with an undesirable discharge, characterized as under other than honorable conditions on 7 June 1972, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service and that he was issued the appropriate SPN.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 635-200, Chapter 1 (General Provisions), which provides the processing procedures for separation and specific guidance in determining the character of service and description of separation.  Thus, in the absence of evidence to the contrary, the Board concludes that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant’s record of service shows completion of 10 months and 19 days of his 2-year enlistment and that he had 116 days (i.e., nearly 4 months) of lost time during the period of service under review.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

6.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___TK __  ___JP___  __DT____  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.




      _____T. S. K.________
                CHAIRPERSON



ABCMR Record of Proceedings (cont)                                         AR20070017394



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508