IN THE CASE OF:	

	BOARD DATE:	 

	DOCKET NUMBER:  AR20080005729 

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, in effect, that his undesirable discharge (UD) be changed to general/under honorable conditions. 

2.  The applicant states, in effect, that he was only 17 years old when he enlisted in the Regular Army (RA).  He had lived in orphanages and had been shuffled between relatives.  He states that he never saw his parents and was confused.  He also states that he joined the military as a way out of the childrens' home and was never involved in any crime or violence, just went absent without leave (AWOL) to go home.  

3.  The applicant provides a DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States; and a copy of his documents related to his separation, dated 1 June 1973, in support of his request. 

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 he enlisted in the RA on 17 May 1972, at the age of 18 years, 1 month, and 18 days.  His date of birth is 31 March 1954.  

3.  On 21 June 1972, while assigned to Fort Knox, Kentucky for basic combat training, the applicant received nonjudicial punishment (NJP) under Article 15, of the UCMJ (Uniform Code of Military Justice), for failure to go at the time prescribed to his appointed place of duty.  His punishments consisted of a forfeiture of $72.00 a month for 1 month, 14 days of restriction to company area, and 14 days of extra duty. 

4.  He successfully completed basic combat training on 10 August 1972.  

5.  The applicant reported to Fort Campbell, Kentucky, to attend advance individual training, on 14 August 1972; however, 4 days after his arrival, he went AWOL (from 18 August 1972 through 2 September 1972). 

6.  On 6 September 1972 the applicant received NJP under Article 15, of the UCMJ, for being AWOL from his unit from 18 August 1972 until on or about 2 September 1972.  His punishment consisted of a forfeiture of one-half month’s pay ($144.00) for 1 month, restriction to the company area for a period of 21 days, and extra duty for 21 days (the periods of restriction and extra duty were to run concurrently). 

7.  On 1 February 1973, the applicant was convicted by a Special Court-Martial of being AWOL on several occasions during the period from 5 September 1972 to 2 November 1972.  His sentence included a forfeiture of $75.00 pay per month for 2 months and confinement at hard labor for 45 days.  [No previous convictions were considered].  The sentence was approved and ordered duly executed.  

8.  Special Court-Martial Order Number 392, dated 8 February 1973 suspended the unexecuted portion of the approved sentence to a forfeiture of $75.00 pay per month for 2 months, until 14 March 1973, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action. 

9.  On 1 June 1973, the applicant’s commander recommended that he be discharged under the provisions of AR 635-200, paragraph 13-5 for unfitness.  




10.  On 1 June 1973, the applicant was counsel by a Judge Advocate Corps Captain.  He acknowledged he understood he was being recommended for separation for unfitness under Chapter 13, AR 635-200 prior to the expiration of his term of service.  He waived consideration of his case by a board of officers; personal appearance before a board of officers; and to submit statements on his own behalf.  He stated that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him.  He stated that he further understood that, as the result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.   

11.  On June 1 June 1973, the approval authority approved the applicant’s discharge.  He directed that he receive an undesirable discharge. 

12.  The applicant was discharged on 7 June 1973, in pay grade E-1, under the provisions of Army Regulation 635-200, paragraph 13-5b and issued an undesirable discharge certificate.  He was credited with 6 months and 8 days of total active service and 193 days of lost time due to being AWOL and in confinement.

13.  The applicant submitted an application for upgrade of his discharge to the Army Discharge Review Board (ADRB) along with his application to the ABCMR. However, his application was not submitted within the ADRB’s 15-year statue of limitations.  Therefore the request was not considered by the ADRB.

14.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  When separation for unfitness was warranted a UD was normally considered appropriate.

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.  Contrary to the applicant's contentions, the evidence shows he was separated under the provisions of Army Regulation 635-200, chapter 13, for unfitness and issued an undesirable discharge.  The evidence shows the applicant's discharge was based on his numerous days of being AWOL.  

2.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the characterization of his discharge.

3.  The applicant stated, in effect, that he was a young man, at the time of his entry on active duty.  It is noted that he was 18 years, 1 month, and 18 days of age at the time of his entry on active duty and was 19 years, 2 months, and 7 days of age on the date of his discharge.  There is no evidence that the applicant was any less mature than other Soldiers of the same age or of a younger age who served successfully and completed their term of service.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ____x___  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.




       _   ___x____   ___
       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)                                         AR20080005729



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ABCMR Record of Proceedings (cont)                                         AR20080005729



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