IN THE CASE OF:	  

		BOARD DATE:	        26 AUGUST 2009

		DOCKET NUMBER:  AR20090005486 


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 that his undesirable discharge be upgraded to honorable.

2.  The applicant states that he was very young and unable to deal with the pressure.  He was unable to deal with excessive authority.  He began to drink heavily due to said pressure and screwed up.  In the last 43 years he has begun to deal with his problems and has become a very productive citizen.  For several years he has been running a non-profit ministry center as an ordained minister.  He also counseled veterans on a daily basis to help them get the help they need.  He has always been patriotic and supported our troops.

3.  The applicant provides no additional documentary evidence in support of his 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, at 17 years and 1 month of age, enlisted in the Regular Army on 1 April 1964 for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 710.00 (Clerk).  He was subsequently assigned for duty as a clerk at Fort Belvoir, Virginia.

3.  On 9 July 1964, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for breaking restriction.  The punishment included an oral reprimand and 14 days restriction and extra duty.

4.  On 3 August 1964, the applicant was convicted by special court-martial of being absent without leave (AWOL) for 8 days.  His sentence consisted of confinement at hard labor for 6 months (suspended) and forfeiture of $52.00 pay per month for 32 months.  

5.  On 2 November 1964, the applicant accepted NJP for breaking restriction.  The punishment included a forfeiture of $15.00 pay per month for 1 month and 14 days extra duty and restriction.

6.  On 24 February 1965, the applicant accepted NJP for AWOL (7 days).  The punishment included reduction to pay grade E-1, a forfeiture of $41.00 pay per month for 2 months, and 45 days extra duty.

7.  The applicant's discharge packet is missing from his military records.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was administratively discharged on 20 April 1965, under the provisions of Army Regulation 635-208, Separation Program Number 28B [for unfitness, frequent involvement of a discreditable nature with civilian and military authorities].  His service was characterized as under conditions other than honorable.  He had completed 1 year and 13 days of creditable active duty. 

8.  Army Regulation 635-208 (Personnel Separations), then in effect, set forth the policy for administrative separation for unfitness (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

9.  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.

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.
11.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board 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 because of his young age at the time, he was not able to deal with the excessive authority.  Therefore, his discharge should be upgraded.

2.  The record shows four offenses in a period of approximately 7 months. Clearly, this is frequent incidents of a discreditable nature.

3.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

4.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The Board notes that at 17 years of age he was old enough to enlist.  Furthermore, he had satisfactory completed his initial training, one of the most stressful periods of any Soldier's career.   There is no available evidence showing that his breaking restriction and being AWOL was due to any "excessive authority" over him.

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 the aforementioned requirement.

7.  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

___XX_____  ____XX____  ___XX_____  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)                                         AR20090005486





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005486



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1