RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080000743 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, in effect, that he was unable to take leave to go home and rectify domestic problems between his parents, so he went home in an absent without leave (AWOL) status.  He further adds that he tried to turn himself in but was not allowed to do so.

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 enlisted in the Regular Army for a period of 2 years on 26 April 1971.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Cook).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant's records show that he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar.  His 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 13 September 1971, for being AWOL during the period on or about 31 August 1971 through on or about 9 September 1971.  His punishment consisted of reduction to the rank/grade of private (PVT)/E-1, forfeiture of $30 pay for 1 month, 7 days of restriction, and 7 days of extra duty.

	b.  On 1 November 1971, for being AWOL during the period on or about 21 October 1971 through on or about 26 October 1971.  His punishment consisted of reduction to the rank/grade of private (PVT)/E-1 and a forfeiture of $33 pay for 1 month.

	c.  On 24 November 1971, for failing to go to his appointed place of duty on 15 November 1971, twice on 17 November 1971, and on 22 November 1971. His punishment consisted of a forfeiture of $62 pay for 1 month.

5.  Item 44 (Time Lost) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows multiple entries of AWOL during the following periods:

	a.  31 August 1971 through 7 September 1971, 8 days AWOL;

	b.  21 October 1971 through 25 October 1971, 5 days of AWOL; 

	c.  26 December 1971 through 4 January 1972, 10 days of AWOL; and

	d.  11 January 1972 through 14 January 1972, 4 days of AWOL.

6.  On 13 March 1972, the applicant pled guilty at a Summary Court-Martial to two specifications of being AWOL during the periods on or about 26 December 1971 through on or about 4 January 1972 and on or about 11 January 1972 through on or about 14 January 1972.  The Court found him guilty of the two specifications of AWOL and sentenced him to reduction to the rank/grade of PVT/E-1 and a forfeiture of $190.00 pay per month for 1 month.  The sentence was adjudged on 13 March 1972 and approved on 14 March 1972. 

7.  On 13 March 1972, by memorandum, the applicant’s immediate commander notified the applicant that he was being recommended for separation from the Army under the provisions of Army Regulation 635-212 (Personnel Separations) for unsuitability.  The applicant acknowledged this notification on 14 March 1972.

8.  On 13 March 1972, the applicant’s immediate commander submitted a memorandum to the Commanding General, Aberdeen Proving Ground, Maryland, recommending the applicant’s separation in accordance with Army Regulation 635-212 for unsuitability.  The immediate commander remarked that the discharge was recommended because of the applicant’s habits and character traits manifested by repeated commission of petty offenses and habitual shirking. This was demonstrated by his constant lateness to report to his assigned place of duty and causing disruption with his peers and supervisors.

9.  On 30 March 1972, the intermediate commander recommended approval of the applicant’s unsuitability discharge.  He further recommended a General Discharge Certificate.

10. On 5 April 1972, the applicant was advised by counsel of the contemplated separation for unsuitability.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected to submit a statement.  He further indicated he understood that if his separation was a general discharge under honorable conditions, he could encounter substantial prejudice in civilian life.

11.  On 11 April 1972, the separation authority approved the applicant's discharge for unsuitability under the provisions of Army Regulation 635-212 and directed that he receive a General Discharge Certificate.  Accordingly, the applicant was discharged on 25 April 1972.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he completed 10 months and 24 days of creditable active military service with 36 days of lost time due to AWOL.  

12.  There is no indication in the applicant’s record that he was undergoing any domestic problems.  

13.  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 for an upgrade of his discharge.

14.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for discharging 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.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge

2.  The applicant’s entire record of service was considered.  However, there is no evidence in the available records and the applicant did not provide any evidence showing his acts of indiscipline were the result of domestic problems.  Furthermore, there is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  There is no evidence and the applicant has not provided any evidence of his post-service conduct and accomplishments, or his standing in the community.

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.

4.  The reason for discharge and the characterization of service were both proper and equitable.  Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his general discharge to fully honorable.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__phm___  __jgh___  __ksj___  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.




							PHM
      ______________________
                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.


ABCMR Record of Proceedings (cont)                                         AR20080000743



2


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