IN THE CASE OF:	  

		BOARD DATE:	       26 March 2009

		DOCKET NUMBER:  AR20080019009 


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, upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states, "I had no adverse actions against me during my military career."

3.  The applicant provides, in support of his request, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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 enlisted in the Regular Army on 31 August 1971. 

3.  On 11 January 1972, a Summary Court-Martial found the applicant guilty of failing to go at the time prescribed to his appointed place of duty on 10 January 1972; being absent without leave (AWOL) from 2 January to 7 January 1972; and willfully disobeying a lawful command from his superior commissioned officer on 10 January 1972.  The adjudged sentence consisted of a reduction to the grade of E-1, confinement at hard labor for 30 days; and a forfeiture of $100.00 pay per month for 1 month.

4.  The court-martial convening authority approved the sentence and ordered it duty executed, but the portion of the sentence adjudging confinement at hard labor in excess of ten days was suspended for four months.

5.  On 23 February 1972, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being AWOL from 7 February to
16 February 1972.  His imposed punishment consisted of a forfeiture of $60.00 per month for 1 month and extra duty for 7 days.

6.  A 31 March 1972 DA Form 3822-R (Report of Mental Status Evaluation) found the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good.  His thinking process and thought content was clear and normal.  There was no significant mental illness.  The applicant was mentally responsible and able to distinguish right from wrong and to adhere to the right.  He also had the mental capacity to understand participate in the discharge process and met retention medical standards.

7.  On 5 April 1972, the applicant was advised of his proposed discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).

8.  The company commander recommended discharge based on the applicant's habits and traits of character, manifested by repeated commission of petty offenses (summary court-martial conviction and nonjudicial punishment under Article 15, UCMJ) and habitual shirking.

9.  On 5 April 1972, the applicant consulted with legal counsel and waived his rights to have his case considered by a board of officers, to appear before such board, to submit statements in his own behalf, and to be represented by counsel.


10.  The separation authority approved the discharge action and, on 25 April 1972, the applicant was separated with an undesirable discharge by reason of unfitness, with a character of service of under other than honorable conditions.  He had 7 months and 24 days of creditable service and 22 days lost time.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 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.

13.  Paragraph 3-7b of the same regulation 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 states, in effect, that his discharge should be upgraded because he had no adverse actions against him.

2.  The applicant is clearly mistaken in the above assertion in view of his record of conviction by a Summary Court-Martial and nonjudicial punishment under Article 15, UCMJ.     


3.  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.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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.



      _________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)                                         AR20080019009



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ABCMR Record of Proceedings (cont)                                         AR20080019009



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