IN THE CASE OF:	

		BOARD DATE:	 11 September 2008 

		DOCKET NUMBER:  AR20080009350 


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 a discharge under honorable conditions or to an honorable discharge.

2.  The applicant states that at the time of his general court-martial he understood that his discharge would be honorable.  He states he was having personal problems at the time, being married, that led to his 1 day of being absent without leave (AWOL).  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) with an effective date of 8 February 1974 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 military personnel record shows he enlisted, with parental consent, in the Regular Army on 14 January 1972 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 11B (Light Weapons Infantryman).

3.  On 16 June 1972, the applicant was assigned to Troop E, 2nd Squadron, 
11th Armored Cavalry Regiment in Germany.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 6 August, 5 September and 
12 September 1973.  His offenses included three specifications of failure to obey a lawful order from a commissioned officer.

5.  On 27 November 1973, the applicant received a local bar to reenlistment.

6.  On 5 December 1973 the applicant pled guilty and was found guilty by a special court-martial of being absent from his appointed place of duty and being AWOL from 22 - 23 October 1973.  His sentence consisted of 90 days confinement and reduction to private/pay grade E-1.  The convening authority approved the sentence on 14 January 1974.

7.  The applicant's separation processing package was not available.

8.  On 8 February 1974, the applicant was discharged by reason of unfitness - frequent involvement of a discreditable nature with civil or military authorities.  He had completed 1 year, 11 months, and 1 day of active service that was characterized as under other than honorable conditions.  He had 64 days time lost.  He was issued an Undesirable Discharge Certificate.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations), then in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a, then in effect, provides for discharge of individuals for unfitness.  Among the reasons for unfitness are frequent incidents of a discreditable nature with civil or military authorities and an established pattern for shirking.  This regulation further provided that an individual separated for unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may have been issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in their case.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that at the time of his general court-martial he understood his discharge would be under honorable conditions.  However, the record shows the applicant never received a general court-martial but was convicted by a special court-martial for being absent from his appointed place of duty and AWOL.  The sentence of the special court-martial did not include a discharge.

2.  The applicant was processed for discharge under the provisions of 
Chapter 13 of Army Regulation 635-200.  The applicant's separation processing package was not available for review.

3.  In the processing of the applicant for a discharge under Chapter 13, he would have been notified by his commander of the pending action to discharge him, advised of his rights, been required to acknowledge his rights and exercise or waive those rights, and acknowledge the consequences of an undesirable discharge.  

4.  Although the applicant's separation package was not available it is presumed that the Army's administrative processing of the applicant for discharge was correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

5.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

6.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.
7.  Based on the foregoing, there is insufficient basis to change the characterization of the applicant's discharge to honorable or under honorable conditions.

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20080009350



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009350



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1