RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 April 2008
	DOCKET NUMBER:  AR20070018873 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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 to a general or an honorable discharge.

2.  The applicant states, in effect, that he was young and stupid and it has been a long time since he served his country, so he deserves an upgrade to his discharge.

3.  The applicant does not provide any 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.  The applicant’s military personnel record shows he enlisted in the Regular Army on 23 August 1974.  He completed the necessary training and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 17 April 1975 and 2 September 1975, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a direct order from a superior commissioned officer, in which he failed to keep his weapon with him at all times and for dereliction in the performance of his duties by negligently failing to stay awake while guarding the arms room.

4.  A DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate) dated 
5 September 1975 shows the applicant received a bar to reenlistment from his commander for having established a pattern of writing checks without having sufficient funds deposited into his checking account.

5.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record, Part II) shows the applicant was absent without leave (AWOL) during the period  
7 November 1975 to 29 November 1975 for a total of 23 days of time lost.

6.  The applicant's discharge packet was not included in his records.  However, his DD Form 214 shows that he received an Undesirable Discharge Certificate on 27 April 1976, and was assigned the Separation Program Designator (SPD) code of KFS, which is assigned to Soldiers who are discharged in lieu of trial by court-martial.  He had completed a total of 1 year, 5 months, and 22 days of Net Active Service This Period and accrued 23 days of time lost.

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

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

9.  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.

10. 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 undesirable discharge should be upgraded to a general or an honorable discharge.

2.  Evidence shows the applicant had 23 days of time lost and had been given NJP twice.  As such, an undesirable discharge was equitable and proper.

3.  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.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  The applicant's contention that he was young and stupid at the time is inadequate to upgrade a properly issued discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__CD __  __LMD__  __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.




___Carmen Duncan  ___
      CHAIRPERSON