IN THE CASE OF:	

		BOARD DATE:	7 July 2009  

		DOCKET NUMBER:  AR20090006850 


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 an honorable discharge.

2.  The applicant states, in effect, that he was young and immature when he served in the military and he did some dumb things.  He states he would like to make things right and, if he were younger, he would not hesitate to join the Army and help his country.

3.  The applicant provides no additional documentation in support of this case.

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 was born on 8 December 1941 and enlisted in the Regular Army on 28 October 1958.  At 16 years, 10 months and 20 days, he was under age 17, the legal age for enlistment with parental consent, by more than 1 month. 

3.  The applicant was assigned to Fort Leonard Wood, MO for basic combat training (BCT) and advanced individual training (AIT).  He received "excellent" conduct and efficiency ratings and he was awarded military occupational specialty (MOS) 670.07 (Aircraft Maintenance Crewman).  He was assigned to the 82nd Airborne Division, Fort Bragg, NC for permanent duty.

4.  At Fort Bragg, the applicant successfully completed Basic Airborne Training and was awarded the Parachutist Badge.  On 23 June 1959, he was assigned to the 82nd Aviation Company, Command and Control (C&C) Battalion with duty in his MOS.

5.  During his 8-month tenure with the 82nd Aviation Company, the applicant's record shows he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on the following dates:

	a.  on 20 July 1959, for failure to obey a lawful order;

	b.  on 14 November 1959, for operating a vehicle with an expired drivers’ license;

	c.  on 14 December 1959, for failure to be at his appointed place of duty; and

	d.  on 15 and 17 December 1959, for missing formation.

6.  During Christmas 1959, the applicant left his unit in an absent without leave (AWOL) status from 23 December 1959 through 4 January 1960.  He returned to military control on 5 January 1960 and was immediately placed in pre-trial confinement.

7.  Court-martial charges were preferred against the applicant for 13 days of AWOL.  On 15 January 1960, he was convicted by a special court-martial and sentenced to a reduction in rank to private/pay grade E-1, a forfeiture of $55.00 per month for 3 months, and confinement at hard labor for 3 months.

8.  On 25 January 1960, the applicant’s commander initiated an elimination packet recommending the applicant’s separation under the provisions of Army Regulation 635-208 (Personnel Separations) for unfitness.  The commander 

cited the applicant’s five NJPs and his special court-martial conviction as reasons for the elimination action.  The applicant was advised of his rights and the effect of a waiver of those rights by his company commander.  He was also advised of the basis for his separation action under the provisions of Army Regulation 
635-208.  The applicant acknowledged notification, declined the opportunity to consult with military counsel, waived consideration of his case by a board of officers, and elected not to provide a statement in his own behalf.

9.  On 15 February 1960, the approving authority approved the recommendation and directed that the applicant receive an undesirable discharge under the provisions of Army Regulation 635-208 for unfitness.  On 24 February 1960, the applicant was separated after completing 1 year, 2 months, and 25 days of creditable active service with 32 days of lost time due to being AWOL and in confinement.

10.  The evidence of record indicates the applicant applied to the Army Discharge Review Board (ADRB) in February 2009 outside of the ADRB's        15-year statute of limitations.

11.  Army Regulation 635-208, in effect at that time, 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.  At the time, an undesirable discharge was normally issued.

12.  Army Regulation 635-200 sets forth the basic policy 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.  

13.  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 honorable discharge based on his youth and immaturity during the time of enlistment.

2.  The applicant was only 16 years of age when he joined the Army, as such he did not meet the minimum age requirement of 17 with the consent of parents.  His enlistment was, in fact, invalid.

3.  The applicant’s contention that he was young and immature has merit.  Certainly, at 16 years of age, he was too young for military service, he was still very young at age 17 when he began receiving NJP.

4.  The applicant’s five NJPs were for minor military offenses – failure to obey, failure to repair, missing formation, and for having an invalid operators permit.  All of these infractions could have been disposed of by extralegal means such as remedial training.  Given the applicant’s age, his chain of command could have elected to use mentoring and more intensive supervision to elicit conformance to rules, rather than to establish a permanent disciplinary record for such minor offenses.

5.  The applicant’s one serious infraction was a 13-day AWOL period starting 
2 days before Christmas and ending shortly after New Year’s Day.  Most likely, he had been denied a pass or leave because of the 15 and 17 December incidents of missing formation.  His departure in an AWOL status at Christmas was the act of an immature young boy and could have been dealt with as such. Instead, his chain of command opted for a special court-martial.

6.  The applicant was a young boy with potential to be a good Soldier.  Placed in the more structured environment of BCT and AIT at Fort Leonard Wood, he achieved "excellent" ratings.  Even in the structured environment of the Basic Airborne Course at Fort Bragg, he rose to the occasion, successfully completed the training and won his Parachutist Badge.  It was only after the structure relaxed in his first permanent duty assignment that his immaturity was permitted to emerge and he ran afoul of the system.

7.  While the applicant’s service does not merit a fully honorable discharge, given his age and immaturity, the minor nature of his NJP offenses, and the circumstances of his 13-day period of AWOL, it would be appropriate to upgrade the applicant’s undesirable discharge to that of a general, under honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding the undesirable discharge, dated 24 February 1960, and issuing the individual a general discharge, under honorable conditions, effective on the same date.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to fully honorable.  




      _______ _   _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)                                         AR20090006850



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ABCMR Record of Proceedings (cont)                                         AR20090006850



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