IN THE CASE OF:	  

	BOARD DATE:	  29 May 2008

	DOCKET NUMBER:  AR20080004967 


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 an upgrade of his discharge.

2.  The applicant states that he was young at the time he joined the Army; however, since his discharge, he has been a model citizen with a stable employment record and no involvement with the law or association with people who break the law.  He also states that he is a victim of Hurricane Katrina and despite this unforeseen situation, he does not have any debts, liens, repossession, garnishment, or any unfavorable judgments against him.  He concludes that he served his country during a time of war and has always been proud of his service to this country.

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 was born on 28 August 1953 and enlisted in the Regular Army at the age of 19 for a period of 3 years on 30 August 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  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 record does 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 11 July 1973, for being absent without leave (AWOL) on 10 July 1973.  His punishment consisted of a forfeiture of $50.00 pay for one month and 14 days of extra duty;

	b.  on 2 October 1973, for failing to go at the prescribed time to his appointed place of duty, on or about 1 October 1973.  His punishment consisted of an oral reprimand;

	c.  on 28 December 1973, for being AWOL on 13 December 1973.  His punishment consisted of an oral reprimand; 

	d.  on 16 January 1974, for operating a vehicle recklessly, on or about 2 January 1974, and being AWOL on 2 January 1974.  His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $167.00 per month for two months, 45 days of extra duty, and 30 days of restriction.  However, the portion of the punishment of forfeiture in excess of $90.00 pay for two months, extra duties in excess of 20 days, and restriction in excess of 7 days, was suspended for 180 days.  The applicant appealed the punishment on 16 January 1974; however, the applicant’s appeal was denied by the next superior commander, on 29 January 1974; and


	e.  On 12 March 1974, for wrongfully having in his possession a trace amount, more or less, of marijuana, on or about 6 February 1974; and failing to obey an order by a superior commissioned officer on or about 13 February 1974. His punishment consisted of forfeiture of $150.00 pay for two months, 45 days of restriction, and 30 days of extra duty. 

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

	a.  16 April 1973 through 22 April 1973, 7 days confinement;

	b.  23 November 1973 through 25 November 1973, 3 days of AWOL; 

	c.  18 April 1974 through 6 June 1974, 50 days of confinement; 

	d.  27 September 1974 through 17 December 1974, 82 days of confinement; and

	e.  6 April 1975 through 6 April 1975, 1 day of AWOL.

6.  On 11 February 1974, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant, citing his continuous acts of indiscipline and unsatisfactory performance and efficiency.  The applicant was furnished a copy of the bar on the same date and elected not to make a statement.  The applicant’s battalion commander subsequently approved the bar on 11 March 1974. 

7.  On 18 April 1974, the applicant pled guilty at a Special Court-Martial to one specification of failing to go at the prescribed time to his appointed place of duty, on or about 19 March 1974, and four specifications of breaking restriction on miscellaneous dates in March 1974.  The Court sentenced him to forfeiture of $200.00 pay for 3 months and confinement at hard labor for 2 months.  The sentence was adjudged on 18 April 1974 and approved on 24 April 1974.

8.  On 26 June 1974, Headquarters, U.S. Army Retraining Brigade, Fort Riley, Kansas, published Special Court-Martial Order Number 1343, suspending the unexecuted portion of the applicant’s sentence to forfeiture of $200.00 pay per month for three months, until 24 July 1974.

9.  On 26 September 1974, the applicant pled Not Guilty at a Special Court-Martial to one specification of failing to obey a lawful order by carrying a concealed weapon, on or about 2 August 1974; one specification of failing to obey a lawful order by driving without corrective lenses, on or about 2 August 1974; one specification of failing to obey a lawful order by driving carelessly and recklessly, on or about 2 August 1974; one specification of failing to obey a lawful order by making an improper right turn, on or about 2 August 1974; one specification of resisting being lawfully apprehended by driving away in an automobile at a high rate of speed, on or about 2 August 1974; and one specification of wrongfully possessing an undetermined amount of a controlled substance, marijuana, on or about 2 August 1974.

10.  The Court found him guilty of one specification of resisting being lawfully apprehended by driving away in an automobile at a high rate of speed, and sentenced him to confinement at hard labor for 4 months, reduction to the rank of PVT, and forfeiture of $100.00 pay per month for four months.  The sentence was adjudged on 26 September 1974 and approved on 1 November 1974.

11.  On 12 December 1974, Headquarters, U.S. Army Retraining Brigade, Fort Riley, Kansas, published Special Court-Martial Order Number 2314, suspending the unexecuted portion of the applicant’s sentence to forfeiture of $100.00 pay per month for four months and confinement at hard labor for four months, until 25 January 1975.

12.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, Special Orders Number 149, issued by Headquarters, U.S. Army Training Center, Infantry and Fort Polk, Fort Polk, Louisiana, on 29 May 1975, directed the applicant's discharge under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) for unfitness.

13.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued at the time of his discharge confirms he was discharged on 30 May 1975, for unfitness, with a character of service of under other than honorable conditions.  This form further shows he completed 2 years, 4 months, and 10 days of creditable active military service and had 144 days of lost time due to AWOL and confinement.

14.  On 5 August 1993, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.

15.  Army Regulation 635-208 (Personnel Separations) (later superseded by Army Regulation 635-200), in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

16.  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.

17.  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 discharge should be upgraded.

2.  The evidence of record shows that the applicant was 19 years of age at the time he enlisted and 21 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age or lower who successfully completed military service.  Furthermore, there is no evidence in the applicant's records, and the applicant did not provide substantiating evidence that shows his long and repeated patterns of misconduct and indiscipline were the result of his age.

3.  The applicant's post-service work history and achievements as well as the unfortunate events of Hurricane Katrina are noted.  However, the U.S. Army has never had a policy where a discharge was upgraded due to passage of time.  
Every case is individually decided based upon its merits when an applicant 
requests a change in his or her discharge.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were improper or inequitable.


4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  It is presumed in this case that the applicant's discharge was in accordance with applicable regulation and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  The applicant's records reveal a disciplinary history which includes 5 
Article 15s, a bar to reenlistment, several instances of AWOL and confinement, and two special courts-martial.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __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)                                         AR20080004967



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ABCMR Record of Proceedings (cont)                                         AR20080004967



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