IN THE CASE OF:	  

		BOARD DATE:	       5 May 2009

		DOCKET NUMBER:  AR20090000249 


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 honorable.

2.  The applicant states, in effect, that because the Army breached his enlistment contract his discharge should be upgraded to honorable.  He states that he was told by his recruiter that he would be guaranteed his pick of a military occupational specialty (MOS).  He chose an MOS as an automobile mechanic but was sent to the Armor School instead.  At the time of his enlistment he was a young 17-year old in jail.  He had a drinking problem and the Army knew what they were getting.  He was never given any treatment for his drinking problem and is now asking for a second chance.

3.  The applicant further states, in effect, that he wants the Board to consider his post service membership with the Blue Sky Color Guard and his service as a police officer and well-respected person of the Cheyenne and Arapaho Tribes of Oklahoma.

4.  The applicant provides, in support of his application, copies of his Bureau of Indian Affairs grade transcript, photographs of himself and the Blue Sky Color Guard, and newspaper articles about his grandfather.

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.  On 8 October 1969, the applicant signed his enlistment contract wherein he agreed to a 3-year enlistment.   His contract stated that his enlistment option included the buddy basic training plan and airborne training.

3.  The applicant completed training as an armor crewman and the Basic Airborne Course and was awarded the corresponding MOS of 11E1P.

4.  On 7 March 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to obey a lawful order issued by the company commander by drinking beer in the barracks.  The punishment included a forfeiture of $63.00 pay per month for 2 months and 8 days of extra duty.  The applicant did not appeal the punishment.

5.  On 3 April 1970, the applicant accepted NJP for an unauthorized absence on 31 March 1970 and for being disrespectful in word and deed to his superior commissioned officer.  The punishment included a reduction to pay grade E-1, forfeiture of $27.00 pay per month for 1 month, and 14 days of restriction and extra duty.  The applicant did not appeal the punishment.

6.  On 21 April 1970, the applicant was convicted by a special court-martial of failing to obey a lawful order and of breaking restriction.  His sentence consisted of confinement at hard labor for 3 months (excess of 2 months suspended) and forfeiture of $25.00 pay per month for 3 months.  He served 50 days in confinement.

7.  On 20 August 1970, the applicant was convicted by a special court-martial of being absent without leave (AWOL).  His sentence consisted of confinement at hard labor for 95 days and forfeiture of $50.00 pay per month for 3 months.  He served 77 days in confinement.

8.  On 30 September 1970, a medical examination found him to be qualified for separation with a physical profile of 1-1-1-1-1-1.  A report of psychiatric examination, dated 8 October 1970, stated that the applicant was mentally responsible [and able] to distinguish right from wrong and to adhere to the right.  He had the mental capacity to understand and participate in the board proceedings.  He had no disqualifying mental or physical disease or defect sufficient to warrant discharge through medical channels.

9.  On 25 October 1970, the applicant's commander notified him of his intention to administratively separate him from the service for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).

10.  On 27 October 1970, the applicant received legal counseling and waived consideration of his case by a board of officers, waived a personal appearance, waived representation by counsel, and declined to submit a statement in his own behalf.

11.  On 28 October 1970, the applicant’s unit commander initiated separation under the provisions of Army Regulation 635-212 for unfitness.  The commander based his recommendation on the applicant's two special court-martial convictions, his chronic AWOL, his dislike for the military service, his lack of self-motivation, and negative attitude toward the military.

12.  On 3 November 1970, the appropriate authority approved the separation action and directed the issuance of an Undesirable Discharge Certificate.

13.  On 6 November 1970, the applicant was discharged accordingly.  He had completed 8 months and 1 day of creditable active service and had 169 days of lost time due to AWOL and confinement.

14.  On 26 October 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200, 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.
17.  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, in effect, that because his enlistment contact was breached his discharge should be upgraded.

2.  There is no evidence of record, nor has the applicant provided sufficient evidence, to support his contention that his enlistment contract was breached.  Furthermore, there is no evidence showing that he had a drinking problem or that such a problem was a factor of his repeated misconduct.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct and lost time also render his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

5.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

6.  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.

7.  In view of the above, the applicant's request should be denied.



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)                                         AR20090000249



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ABCMR Record of Proceedings (cont)                                         AR20090000249



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