IN THE CASE OF:	  

	BOARD DATE:	  29 May 2008

	DOCKET NUMBER:  AR20080004611 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he spent two months in the stockade and believes that should have been enough punishment for his absent without leave (AWOL) infractions.  Since then he has survived cancer and has a whole new outlook on life.  At that time, he was only 17 years of age with a pregnant girlfriend when he entered the Army.  He had no idea at 17 years of age what he was in for.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the ending period 27 November 1973; two Letters of Support from fellow associates; two Certificates of Excellence from the Apartment Investment and Management Company (AIMCO), with dates July 
2004 and November 2005; an AIMCO Certificate of Completion, dated 25 April 2005; and a Certificate of Completion from the Apartment Association of Greater Omaha and Lincoln, dated 20 April 2005.

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 was born on 10 March 1955.  He enlisted in the Regular Army on 30 October 1972 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).

3.  On 26 January 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL for the period 22 January 1973 through 25 January 1973. 

4.  On 1 March 1973, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 20 February 1973 through 21 February 1973.

5.  On 14 May 1973, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 27 April 1973 through 30 April 1973.

6.  On 24 May 1973, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 18 May 1973 through 23 May 1973.

7.  On 2 July 1973, the applicant was convicted, pursuant with his plea, by a summary court-martial of being AWOL for the period 11 June 1973 through 
13 June 1973.  His sentence consisted of a forfeiture of $204.00 pay per month for 1 month and reduction to Private (PVT)/E-1.

8.  Evidence of record shows that the applicant was AWOL for the periods 
9 July 1973 through 15 July 1973, 19 July 1973 through 22 July 1973, 24 July 1973 through 6 August 1973, and 10 October 1973 through 27 November 1973.

9.  The court-martial charge sheet is not available.

10.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 shows that he was discharged on 27 November 1973 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of "For Good of the Service" with a characterization of service of under other than honorable conditions.  The applicant completed 10 months and 12 days of creditable active service with 87 days of lost time due to being AWOL.
11.  The applicant provided a letter of support from a Sales Representative of the Sherwin-Williams Company, dated 28 March 2007.  The author stated that he has known the applicant for 17 years.  He stated that the applicant is the most thorough and hard working person he has encountered.  He continued that the applicant is a vital part of the property management system.  His attention to detail, work ethics, and his money-conscience is the foundation of a successful company.

12.  The applicant provided a letter of support from a Regional Property Manager, dated 30 March 2007.  The author stated that the applicant demonstrated he was an experienced and knowledgeable maintenance manager.  He is knowledgeable about many aspects of multi-family property operations, maintenance service, unit turnover, inventory management, and resident services.  He was quick to learn change and operates his own service duties in an effective and efficient manner.  The author further stated that the applicant was organized, loyal, competent and efficient in all aspects of his duties and responsibilities.

13.  Army Regulation 635-200 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.  

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.  

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 the two months in the stockade was enough punishment for his AWOL infractions and at that time he was young with a pregnant girlfriend.  There is no evidence in the applicant's records that show he spent two months in the stockade.  Records show that he was 17 years, 
7 months, and 21 days of age at the time his active service began and 18 years, 8 months, and 18 days of age at the time of his discharge.  After his first Article 15, he should have known there would be consequences for his actions.  Therefore, his contention that he was young at the time of his offenses does not mitigate his indiscipline.

2.  The applicant's good post-service conduct since his discharge is acknowledged.  However, good post-service conduct alone is not a basis for upgrading a discharge and, upon review, the applicant's good post-service conduct is not sufficient to mitigate his indiscipline in the Regular Army.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.  

4.  The applicant's records show that he received four Article 15s, he was convicted by a summary court-martial, and had nine instances of being AWOL.  He had completed 10 months and 12 days of creditable active service before his separation with a total of 87 days of lost time due to being AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx __  ___xx x_  ___xxx  __    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.




               xxx                  
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004611



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ABCMR Record of Proceedings (cont)                                         AR20080004611



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