IN THE CASE OF:	  

		BOARD DATE:	 9 June 2009 

		DOCKET NUMBER:  AR20090000135 


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 states that he enlisted less than 2 weeks before his father died which resulted in his turmoil over his father's death.  He contends that had he waited until after his father's funeral to enlist, he would not have had as many problems while on active duty.  He also states that he is requesting an upgrade of his undesirable discharge to a general discharge so he can secure benefits from the Department of Veterans Affairs (DVA).

3.  The applicant provides a VA Form 21-4138 (Statement in Support of Claim), dated 4 November 2008; a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 9 December 2008; two undated third-party letters; and two third-party letters, dated 31 October 2008 and 1 November 2008, 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 31 August 1972 for training in military occupational specialty (MOS) 71B (Clerk Typist).  He completed basic combat training, but prior to doing so, he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 31 October 1972 for absenting himself without authority from his unit on or about 27 October 1972 and remaining so absent until on or about 30 October 1972.  His punishment consisted of forfeiture of $66.00.  He did not appeal this punishment or submit matters in extenuation, mitigation, or defense.  He was then reassigned for advanced individual training (AIT) in MOS 71B in early January 1973.

3.  On 12 January 1973, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 5 January 1973 and remaining so absent until on or about 9 January 1973.  His punishment consisted of forfeiture of $71.00 and 7 days of correctional custody.  He did not appeal this punishment or submit matters in extenuation, mitigation, or defense.

4.  On 13 February 1973, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 25 January 1973 and remaining so absent until on or about 8 February 1973.  His punishment consisted of a reduction in rank and pay grade from private/E-2 to private/E-1 and forfeiture of $100.00.  He did not appeal this punishment or submit matters in extenuation, mitigation, or defense.

5.  The applicant failed to complete AIT in MOS 71B and was subsequently reassigned to Fort Campbell, Kentucky, for AIT in MOS 55A (Ammunition Handler).  After completing this AIT, he remained at Fort Campbell for what would be his first and only permanent duty assignment.

6.  On or about 14 March 1974, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 6 March 1974 and remaining so absent until on or about 12 March 1974.  His punishment consisted of 20 days of correctional custody.

7.  On 26 April 1974, the applicant was convicted by a summary court-martial for absenting himself without authority from his unit on or about 29 March 1974 and remaining so absent until on or about 8 April 1974.  He was sentenced to forfeiture of two-thirds pay per month for 1 month and hard labor without confinement for 45 days.  On 20 May 1974, the applicant's sentence was approved and ordered to be duly executed.

8.  On 19 July 1974, the applicant accepted NJP under Article 15 of the UCMJ for being drunk while on duty as a post interior guard.  His punishment consisted of forfeiture of $50.00 and 30 days of extra duty.

9.  On 7 November 1974, the applicant's commander informed him that it was his intention to recommend his elimination from military service under the provisions of chapter 13 (Separation for Unfitness or Unsuitability), Army Regulation 
635-200 (Active Duty Enlisted Administrative Separations) for unfitness.  His recommendation was based on the applicant's previously-mentioned periods of absence without leave (AWOL), being drunk while on post guard, four instances of indebtedness, and being convicted of operating a motorcycle without indorsement and no protective headgear.  The applicant was also advised of his rights.

10.  On 11 November 1974, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for unfitness under the provisions of chapter 13 of Army Regulation 635-200 and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  The applicant waived consideration of his case and personal appearance before a board of officers and elected not to submit statements in his own behalf.  He also waived counsel.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  Additionally, he understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he could 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.

11.  On 30 December 1974, the proper separation authority approved the applicant's discharge under the provisions of paragraph 13-5(a)(1) (frequent involvement in incidents of a discreditable nature with civil or military authorities) of Army Regulation 635-200 and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  He also waived the rehabilitative transfer requirement.  On 8 January 1975, the applicant was discharged accordingly.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  The applicant provided four third-party letters supporting his request that his discharge be upgraded.  These letters essentially portray the applicant as an honest man with high integrity and good morals who is full of compassion and a willingness to help others.

14.  Army Regulation 635-200, in effect at the time, set forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provided for separation due to unfitness when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the Soldier will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  At the time, an undesirable discharge was normally appropriate for a Soldier discharged for misconduct; however, the separation authority could direct that a general discharge be issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in his or her case.

15.  Army Regulation 635-200 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.  This same regulation 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.

16.  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.  This 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 his undesirable discharge should be upgraded to a general discharge.

2.  The applicant's contention that his father died less than 2 weeks after he enlisted was noted.  While it is truly regrettable that the applicant lost his father at an early age, the fact that he now states that he should have waited until after his father's funeral to enlist implies that more likely than not he knew that his father was dying at the time of his enlistment, and that he knew or should have known that he was likely saying goodbye to his father when he left for basic training.  There is also no evidence in his military records which shows that he ever requested assistance from his chain of command or any external offices such as the American Red Cross or his unit chaplain with any difficulty he was having prior to or after his father's death.  He also did not submit any matters in extenuation, mitigation, or defense of his earlier periods of AWOL.

3.  The fact that the applicant is requesting an upgrade of his discharge in order to obtain benefits from the DVA was also noted.  However, the ABCMR does not upgrade discharges solely for the purpose of making an applicant eligible for veteran's benefits.

4.  The third-party letters of support were also carefully considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

5.  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.

6.  The evidence clearly shows that the applicant accepted NJP under Article 15 of the UCMJ on at least five occasions for multiple instances of AWOL and one instance of being drunk while on guard duty.  He was also convicted by a summary court-martial for another instance of AWOL and was counseled for multiple instances of indebtedness and one instance of operating a motorcycle without indorsement and no protective headgear.  Based upon these offenses, his discharge under the provisions of Chapter 13 of Army Regulation 635-200 and his undesirable discharge were appropriate.  The applicant also failed to provide any evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

7.  Based on the applicant's record of indiscipline, his 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.



      ____________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)                                         AR20090000135



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ABCMR Record of Proceedings (cont)                                         AR20090000135



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