IN THE CASE OF:	  

		BOARD DATE:	        07 MAY 2009

		DOCKET NUMBER:  AR20090000226 


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, an upgrade of his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states that he is seeking educational benefits, which requires an upgrade of his discharge.  He adds that he realizes that he made mistakes in the past and that he is sorry for his actions.  He further adds that he experienced a difficult childhood and had to overcome several obstacles to join the Army.  Even after he entered the Army, he was seen as a troublemaker rather than a young Soldier in need of guidance, discipline, and structure.  He concludes that he is now a family man and that he is active in his local church.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 16 August 1972, in support of his request.

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 records show he enlisted in the Regular Army for a period of 2 years on 26 February 1971.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76A (Supply Clerk).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant’s records also show that he was awarded the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar.  His records do not reveal any achievements or acts of special recognition during his military service.

4.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the applicant was reported in an absent without leave (AWOL) status during the periods 7 September 1971 through 28 September 1971 (22 days), 30 November 1971 through 5 December 1971 (6 days), and 7 August 1972 through 16 August 1972 (10 days).

5.  The applicant's record reveals a history of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 18 June 1971, for disobeying a lawful order from a superior noncommissioned officer (NCO) on or about 17 June 1971 and being disrespectful in language towards a superior NCO on or about 17 June 1971.  His punishment consisted of a forfeiture of $60.00 pay per month for 2 months, 30 days of restriction, and 14 days of extra duty;

	b.  on 3 April 1972, for failing to go at the prescribed time to his appointed place of duty on or about 29 March 1972.  His punishment consisted of a reduction to private (PV1)/E-1 (erroneously shown as PV2/E-2) (suspended for 30 days), 30 days of extra duty (suspended for 30 days), and 7 days of restriction;

	c.  on 6 April 1972, for twice breaking restriction on or about 3 April 1972 and on or about 4 April 1972.  His punishment consisted of 30 days of extra duty and a forfeiture of $160.00 pay per month for 2 months (suspended for 6 months).  Furthermore, the suspension of punishment of forfeiture of $160.00 pay for 2 months was vacated on 12 May 1972 and ordered executed; and

	d.  on 4 May 1972, for failing to go at the time prescribed to his appointed place of duty on or about 29 April 1972, being disrespectful towards a superior commissioned officer on or about 29 April 1972, and disobeying a lawful order on or about 29 April 1972.  His punishment consisted of 14 days of restriction, 14 days of extra duty, and forfeiture of $80.00 pay.  He appealed his punishment on 4 May 1972; however, his appeal was denied on 1 June 1972. 

6.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, the applicant's record contains a properly constituted DD Form 214 that shows he was discharged on 16 August 1972 under the provisions of Army Regulation 635-212 (Personnel Separation – Discharge – Unfitness and Unsuitability) by reason of unfitness (Separation Number 28B), with a character of service of under other than honorable conditions.  This form also confirms he completed 1 year, 4 months, and 13 days of creditable active military service and had 38 days of lost time.

7.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

8.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

9.  Army Regulation 635-200, governs the policies and procedures for the separation of 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.

10.  Army Regulation 635-200, paragraph 3-7b, 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 contends that his undesirable discharge should be upgraded to a general, under honorable discharge.

2.  The applicant's contention that he had a troubled childhood is noted.  However, there is no evidence in the applicant's records and he did not provide any evidence that shows childhood experiences caused him to go AWOL, disobey orders, or be disrespectful to others, as evidenced by his multiple instances of nonjudicial punishment.  There were other avenues, such as the installation chaplain, he could have used to obtain the guidance he needed had he chosen to do so.

3.  The applicant's record is void of the facts and circumstances surrounding his discharge; however, his record reveals four instances of nonjudicial punishment and three instances of AWOL.  It appears that his chain of command initiated separation action against him and his DD Form 214 shows he was discharged for unfitness under the provisions of Army Regulation 635-202 with an undesirable discharge.  His discharge was presumably conducted in accordance with law and regulations applicable at the time with no indication of procedural errors that would tend to jeopardize his rights and the character of the discharge is commensurate with his overall record of military service.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant's requested relief in this case.

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)                                         AR20090000226



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ABCMR Record of Proceedings (cont)                                         AR20090000226



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