IN THE CASE OF:	  

		BOARD DATE:	        05 FEBRUARY 2009

		DOCKET NUMBER:  AR20080016644 


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 be upgraded to a general discharge. 

2.  The applicant essentially believes that the discharge he was awarded was unjust relative to the nature of the punitive administrative actions that were imposed on him.  He also states, in effect, that while he is not discounting his actions, the Board will find that he was unfairly penalized after reviewing his records. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a third-party letter, dated 20 August 2008, from a woman who has known the applicant for approximately 25 years; a third-party letter, dated 20 August 2008, from a licensed professional counselor; and a third-party letter, dated 31 July 2008, from a pastor 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.  The applicant's military records show that he enlisted in the Regular Army on 2 June 1971.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  However, prior to completing this training, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions.  His offenses included breaking restriction, stealing an eight-track tape player from the post exchange, behaving with disrespect and contempt toward two noncommissioned officers (NCOs), and failing to go at the time prescribed to his appointed place of duty.  Collectively, his punishment for these offenses was one reduction in rank, forfeiture of $200.00, 59 days of restriction, and 89 days of extra duty.  He departed for a tour in Germany on 13 January 1972.

3.  On 10 March 1972, the applicant accepted NJP under Article 15 of the UCMJ for sleeping at his post while posted as a sentinel in a tower.  His punishment consisted of a forfeiture of $66.00 and 7 days of restriction.

4.  On 24 July 1972, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 6 June 1972, and remaining so absent until on or about 19 July 1972.  His punishment consisted of a forfeiture of $100.00 pay per month for 2 months.

5.  On 25 July 1972, the applicant went absent without leave, and was subsequently dropped from the rolls of the Army.  He returned to military control on 2 January 1973 and was assigned to the United States Army Personnel Control Facility at Fort Dix, New Jersey.  The applicant was tried by a special court-martial for this offense in which the trial was conducted by a military judge alone, and this military judge accepted a not guilty plea for the applicant's unauthorized absence from 25 July 1972 to 2 January 1973 for unknown reasons.

6.  On 23 November 1973, the applicant was convicted by a special court-martial for:

	a.  absenting himself without authority from his unit on or about 6 March 1973, and remaining so absent until on or about 17 March 1973;

	b.  absenting himself without authority from his unit on or about 21 March 1973, and remaining so absent until on or about 22 March 1973;
	c.  absenting himself without authority from his unit on or about 24 April 1973, and remaining so absent until on or about 27 April 1973;

	d.  absenting himself without authority from his unit on or about 14 May 1973, and remaining so absent until on or about 18 May 1973; and

	e.  absenting himself without authority from his unit on or about 22 May 1973, and remaining so absent until on or about 2 October 1973.

7.  The applicant was sentenced to confinement at hard labor for 3 months and a forfeiture of $200.00 pay per month for 5 months.  On 4 December 1973, the applicant's sentence was approved and ordered to be duly executed.  He was then reassigned to the United States Army Retraining Brigade at Fort Riley, Kansas.  On 31 January 1974, the unexecuted portion of the applicant's sentence to confinement at hard labor for 3 months and forfeiture of $200.00 pay per month for 5 months was suspended until 22 February 1974 and ultimately remitted without further action.

8.  On 11 March 1974, the applicant's commanding officer informed the applicant that he intended to recommend that he be eliminated from the service for unfitness due to his involvement in frequent incidents of a discreditable nature with military authorities and his complete contempt and disrespect for authority.  The applicant was also advised of his rights.

9.  In an undated statement, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action to accomplish his separation for unfitness under the provisions of chapter 13 (Separation for Unfitness or Unsuitability), Army Regulation 635-200 (Enlisted Personnel Separations).  He requested consideration of his case and personal appearance before a board of officers, and requested representation by counsel.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as a result of issuance of an undesirable discharge under conditions other than honorable, he might 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.  He also elected to make a statement in his own behalf, in which he essentially stated that most of his problems arose from a personality conflict with his company commander and first sergeant, and that if reassigned, he could again become a good Soldier.

10.  On 1 April 1974, the applicant accepted NJP under Article 15 of the UCMJ for willfully disobeying a lawful order given to him by his superior NCO.  His punishment consisted of a forfeiture of $75.00, 14 days of extra duty, and 14 days of restriction.

11.  On 11 April 1974, a mental status evaluation was conducted on the applicant and he was essentially cleared psychiatrically for any administrative action deemed appropriate by his command.

12.  In a letter, dated 2 May 1974, the applicant was notified that a board of officers would hold a hearing on 17 May 1974 to determine whether he would be discharged because of unfitness before the expiration of his term of service.  The assistant adjutant who prepared this letter also made an entry in which he certified that the aforementioned letter was personally delivered by him to the applicant on 3 May 1974.

13.  The board of officers summary of proceedings essentially shows that it recommended that the applicant be discharged from the service because of unfitness with the issuance of a DD Form 258A (Undesirable Discharge Certificate).

14.  In an undated document, the proper separation authority approved the applicant's discharge under the provisions of paragraph 13-5a(1), Army Regulation 635-200, and waived the rehabilitation requirements.  He also directed that the applicant be reduced to the rank and pay grade of private/E-1, and directed that a DD Form 258A be issued to him.  On 16 July 1974, the applicant was discharged accordingly.  The DD Form 214 that he was issued at the time of his discharge shows that he completed only 1 year, 9 months, and 13 days of active duty service, and that he had 489 days of lost time.  This document also essentially shows that he was not awarded any personal decorations.

15.  In a letter, dated 18 April 1983, the Army Discharge Review Board informed the applicant that his request for a change in the type and nature of his discharge had been denied.

16.  The applicant provided a third-party letter, dated 20 August 2008, from a woman who has known the applicant for approximately 25 years.  This woman essentially stated that the applicant has overcome many adversities and problems in that period of time, and that he has made changes to better himself in every way that affects his life.  He also provided a third-party letter, dated 20 August 2008, from a licensed professional counselor who essentially stated that the applicant has been receiving mental health counseling with her since 9 July 2008.  Additionally, he provided a third-party letter, dated 31 July 2008, from a pastor who essentially stated that he has known the applicant for at least 10 years and that he has talked to the applicant several times in the month prior to his letter.  He also stated that the applicant talks and seems to be well mentally, but that his health is not that good, and hopes in some way that his letter will be beneficial to the applicant and also help him get the assistance he needs.

17.  Chapter 13 of Army Regulation 635-200, in effect at the time, provided guidance for separating enlisted Soldiers for unfitness and unsuitability.  Paragraph 13-5 provided, in pertinent part, that an individual was subject to separation for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  Soldiers discharged by reason of unfitness were normally furnished an undesirable discharge certificate, except that an honorable or general discharge could be issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in his or her case.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides, in pertinent part, 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.

19.  Army Regulation 635-200 also provides, in pertinent part, 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 undesirable discharge should be upgraded to a general discharge.

2.  The third-party letters provided by the applicant were carefully considered.  The fact that these letters essentially indicate that the applicant's post-service conduct has been good and that he requires assistance was noted.  However, good post-service conduct alone is not a basis for upgrading a discharge, and the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for benefits.

3.  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.

4.  There is no evidence in the applicant's military records, and the applicant failed to provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process.  As a result, regularity must be presumed in this case, and the applicant's discharge accurately reflects his overall record of service.

5.  Based on the applicant's extensive record of indiscipline, which included accepting NJP under Article 15 of the UCMJ on six occasions and being convicted by a special court-martial, 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, he is not entitled to either an honorable or general discharge.

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)                                         AR20080016644



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ABCMR Record of Proceedings (cont)                                         AR20080016644



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