IN THE CASE OF:	

		BOARD DATE:	11June 2009

		DOCKET NUMBER:  AR20090002728 


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 he was too young to realize what was happening or what he was doing.  He wants to clear his record of this undesirable discharge.

3.  The applicant provides, in support of his application, a copy of his Undesirable Discharge Certificate.

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 9 November 1966, the applicant, at 19 years of age, was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 9 March 1967, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) during the period from 18 February to 6 March 1967.  The punishment included a forfeiture of $14.00 pay per month for 1 month and 14 days of restriction and extra duty.

4.  On 4 May 1967, the applicant was assigned duty as an infantryman with the 1st Battalion, 11th Infantry Regiment, located at Fort Carson, Colorado.

5.  On 23 May 1967, the applicant was advanced to the rank of private first class, pay grade E-3.

6.  On 10 October 1967, the applicant was convicted by a special court-martial of being AWOL from 17 July to 25 September 1967.  His sentence consisted of confinement at hard labor for 4 months.  He was confined for 27 days.

7.  On 20 March 1968, the applicant was convicted by special court-martial of being AWOL from 8 November 1967 to 29 February 1968.  His sentence consisted of a forfeiture of $40.00 pay per month for 6 months and confinement at hard labor for 6 months.  He was confined for 49 days.

8.  On 16 April 1968, the applicant’s unit commander initiated separation under the provisions of Army Regulation 635-212 for unfitness.  The commander stated that the applicant had one NJP, three periods of AWOL, two special court-martial convictions and more than 250 days of lost time.  The applicant appeared to be content to receive an undesirable discharge and had no regrets about his deplorable record.  The applicant had been repeatedly counseled regarding the seriousness of an undesirable discharge but insisted that he wanted a discharge regardless of the consequences he may face in civilian life.

9.  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.



10.  On 26 April 1968, the appropriate authority approved the separation action and directed issuance of an Undesirable Discharge Certificate.  On 2 May 1968, the applicant was discharged accordingly.  He had completed 8 months and 
4 days of creditable active duty service and had accrued 290 days of lost time.

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

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability.  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 Certificate was normally considered appropriate.

13.  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.

14.  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 because he was too young to realize what was happening or what he was doing. 

2.  The applicant's contention that his misconduct was due to his young age is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was 19 years of age when he was inducted, had satisfactorily completed his initial training and had been advanced to private first class.  His satisfactory performance demonstrated his capacity to serve and showed that he was neither too young nor immature.


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 this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable 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.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090002728



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ABCMR Record of Proceedings (cont)                                         AR20090002728



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