IN THE CASE OF:	  

	BOARD DATE:	  22 July 2008

	DOCKET NUMBER:  AR20080006212 


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 Undesirable Discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was too young and immature when he was in the Army.  He became involved with drugs and alcohol and did not receive the help he needed.  He continued to use drugs until 18 months ago.  He is now clean and sober, living in a transitional housing facility for veterans who have similar problems.  He volunteers as a peer counselor.  He also works for the Economic Security Corporation as a janitor in their Head Start Program for underprivileged children.  He regrets his past mistakes.

3.  The applicant did not provide additional documentary evidence in support of this 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.  On 9 September 1969, the applicant enlisted in the Regular Army for a period of 3 years.  He was 17 years old at the time of his enlistment.  His mother gave her legal consent to his enlistment.  He was trained in, awarded, and served in military occupational specialty (MOS) 76U (Communications/Electronic Repair Parts Specialist).  He attained the grade of private first class/E-3. 

3.  The applicant's records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following 3 separate occasions for the offenses indicated:  18 September 1969, for disrespectful language to a specialist six/E-6 by saying "You M____ F____, I'll kick your ass";
6 October 1969, leaving his place of duty without authority; and 25 February 1970, for failing to repair.

4.  On 28 October 1969, a special court-martial convicted the applicant of
3 specifications of assaulting other Soldiers with an ice pick, with his hands, and with a knife.  The resultant sentence included confinement at hard labor for
6 months and a forfeiture of $50.00 pay per month for 6 months.  The applicant was confined from 28 October 1969 – 3 February 1970, for a total of 99 days. 

5.  On 14 July 1970, a special court-martial convicted the applicant of failing to go to his appointed place of duty, work call formation, sleeping on his post, and for unlawfully striking a PFC in the neck with his fists.  The resultant sentence included confinement at hard labor for 5 months and a forfeiture of $80.00 pay per month for 5 months.  Including his pre-trial confinement, the applicant was confined from 10 June – 13 September 1970, for a total of 96 days. 

6.  On 14 August 1970, while in confinement, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-212 by reason of unfitness, with an Undesirable Discharge.    

7.  On 19 August 1970, the applicant underwent a psychiatric examination.  He was diagnosed with a severe antisocial personality disorder.  The examiner indicated that he had been previously diagnosed (on 6 July 1970) with a personality disorder and was given a further trial in the Army.  He was unable to adjust and had continued difficulty.  He was responsible, both to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in discharge proceedings.  It was unlikely he would adjust to being an effective Soldier.  He was cleared for any administrative decision deemed appropriate by his command.  The examiner made no reference to a drinking of drug abuse problem.

8.  On 20 August 1970, the applicant waived his right to consult with legal counsel and his right to an appearance before an administrative separation board.  He did not submit a statement in his own behalf.

9.  On 24 August 1970, the applicant underwent a separation physical.  He indicated that his health was "good" and made no indication that he was involved in alcohol/drug usage or that he needed help to overcome a substance abuse problem.  The examiner did not indicate that he found any suspicion of alcohol/drug usage and found that the applicant was medically qualified for separation.  

10.  On 4 September 1970, the separating authority approved the applicant's discharge and directed that he receive an Undesirable Discharge.

11.  On 14 September 1970, the applicant was discharged after completing
5 months and 26 days of active Federal service.  His service was characterized as under other than honorable conditions on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He had 195 days of lost time due to military confinement

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An Undesirable Discharge was normally considered appropriate for members separating under these provisions. 

13.  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.

14.  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.

15.  On 19 May 1983, the Army Discharge Review Board considered the applicant's request for an upgrade of his discharge and denied his application.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's personnel record shows he received 3 NJPs and was convicted by special courts-martial on 2 separate occasions.  Both of his courts-martial convictions included incidents of violence against other Soldiers.  He accumulated 195 days of lost time due to military confinement and was only available for duty for 5 months and 26 days.  Given the applicant's continued misconduct, the command appropriately determined the applicant did not demonstrate the potential for further military service.

2.  Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge and reason for separation were appropriate considering all the facts of the case.  

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant indicated that he fully understood the ramifications of his type of discharge and voluntarily waived his right to counsel and an administrative separation board.

4.  The applicant contends that he was young and immature when he was in the Army.  However, his official record shows that he enlisted with the legal consent of his mother and there is no evidence that he was any less mature than other Soldiers of the same age who successfully completed military service.  He further contends that he had an alcohol and drug abuse problem and that he was not offered any assistance.  A review of his service medical records did not show any reports of an alcohol and/or drug problem.  He underwent both a mental and physical examination at the time of his separation and he indicated that his health was good and failed to make any comments to either medical examiner that he had an alcohol and/or drug problem.  If he was seeking help as he contends, that would have been the optimum opportunity to raise his issues of substance abuse.  

5.  Although the applicant was diagnosed with a severe antisocial personality disorder, the examiner indicated that he was able to distinguish right from wrong and adhere to the right, and that he had the mental capacity to understand and participate in discharge proceedings.  The examiner cleared him for administrative processing as deemed appropriate by his command.
6.  Based on the infractions of discipline shown in the record, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant is to be commended for his success in maintaining sobriety and his current contributions to his community; however, these accomplishments so many years removed from his discharge are insufficiently mitigating to overcome the applicant's serious misconduct. 

7.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, he is not entitled to the relief he has requested.

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.



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       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)                                         AR20080006212



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ABCMR Record of Proceedings (cont)                                         AR20080006212



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