IN THE CASE OF:	  

		BOARD DATE:	        23 OCTOBER 2008

		DOCKET NUMBER:  AR20080014296 


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 general discharge.

2.  The applicant states that his discharge was too harsh for the misconduct for which he was discharged.  He goes on to state that he desires the Board to forgive his adolescent behavior because he was very young at the time.  He further states that he has regretted his actions over the years and has worked hard to become a better citizen and productive member of the community.  

3.  The applicant provides a copy of a police records check from Oceola County, Florida (applicant’s address is in Brevard County, Florida), 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 was born on 28 June 1953 and enlisted in Jacksonville, Florida on 31 August 1971 for a period of 3 years and training in the Administrative Career Management Field.  He completed all of his training and was awarded the military occupational specialty of a clerk-typist.  He was transferred to Fort Stewart, Georgia on 26 January 1972.
 
3.  On 1 March 1972, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 26 February to 28 February 1972.  His punishment consisted of a reduction to the pay grade of E-2 (suspended for 90 days), a forfeiture of pay (suspended for 90 days), and extra duty.   

4.  He was advanced to the pay grade of E-4 on 6 June 1972 and on 30 September 1972, he was transferred to Bad Kreuznach, Germany for assignment as a clerk-typist in a Signal Battalion.    

5.  On 8 March 1973, NJP was imposed against him for two specifications of failure to go at the time prescribed to his place of duty and one specification of being AWOL from 22 February to 24 February 1973.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 60 days), a forfeiture of pay, extra duty, and restriction.  On 24 April 1973, the imposing commander vacated the suspended portion of his punishment because the applicant again failed to go to at the time prescribed to his place of duty. 

6.  On 30 May 1973, NJP was imposed against him for being AWOL from 2 May to 4 May 1973, for being absent from his place of duty on 22 May 1973, and two specifications of failure to report for mandatory urinalysis on 17 May and 20 May 1973.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and correctional custody for 10 days.  

7.  On 16 July 1973, the applicant was evaluated at the Psychiatry and Drug Abuse Clinic following a positive drug urinalysis.  The examining official indicated that the applicant denied the use of drugs; however, his two positive urinalyses dictate that he should be placed in the Active Rehabilitation Program.  

8.  On 18 July 1973, the applicant’s commander initiated action to bar the applicant from reenlistment.  He cited the applicant’s disciplinary record, his repeated failure to go to his place of duty, his lackadaisical attitude, his failure to 

follow orders, his shirking, and recalcitrance as the basis for his recommendation. The applicant declined the opportunity to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 24 July 1973. 

9.  On 23 July 1973, NJP was imposed against the applicant for two specifications of failure to obey a lawful order to take a urine test, two specifications of failure to go at the time prescribed to his place of duty, and one specification of being AWOL from 27 July to 28 July 1973.  His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

10.  On 19 October 1973, the applicant’s commander initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-200, chapter 13, for unfitness.  He cited the applicant’s established pattern of shirking, drug abuse, unsatisfactory duty performance, and his failure to respond to numerous counseling sessions as the basis for his recommendation.

11.  After consulting with counsel, the applicant elected to exercise his rights and to appear before a board of officers.

12.  On 19 February 1974, a board of officers convened at Rose Barracks, Bad Kreuznach, Germany at 0900 hours and the applicant was present and represented by counsel.  After hearing all testimony and reviewing the evidence of record, the board found that the applicant was undesirable for further retention in the service because of overwhelming, habitual shirking and recommended that he be discharged for unfitness and issued an Undesirable Discharge Certificate.  The board adjourned at 1500 hours.

13.  The appropriate authority (a major general) approved the findings and recommendation of the board of officers on 15 March 1974 and directed that the applicant be furnished an Undesirable Discharge Certificate.

14.  Accordingly, the applicant was discharged with an undesirable discharge, characterized as under other than honorable conditions on 5 April 1974, under the provisions of Army regulation 635-200, chapter 13, for unfitness.  He had served 2 years, 7 months, and 1 days of total active service and had 5 days of lost time due to AWOL.

15.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 established policy and procedures for separating personnel for unfitness.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, an undesirable discharge was normally considered appropriate.

17.  Paragraph 3-7b also 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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant's contentions have been noted by the Board; however, they are not supported by either the evidence submitted with his application or the evidence of record.  The applicant's misconduct consisted primarily of his refusal to follow orders, shirking of his duties, and repeated failure to go to work as ordered.  His was afforded numerous opportunities to rehabilitate himself; however, his misconduct continued up until the time of his discharge.  Therefore, his record of undistinguished service does not warrant an upgrade of his discharge.

4.  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 this 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.



      __________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)                                         AR20080014296



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ABCMR Record of Proceedings (cont)                                         AR20080014296



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