IN THE CASE OF:	

		BOARD DATE:	       8 OCTOBER 2009

		DOCKET NUMBER:  AR20090008298 


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.

2.  The applicant states that while stationed in Germany, he was under stress and requested to go on leave, but his request was denied.  He adds that he was a headstrong teenager and felt that he had to get away.  Therefore, he went absent without leave (AWOL).  The applicant offers that when he returned to his unit, he received an Article 15 for three days of being AWOL.  He states that he was offered an early out by accepting an undesirable discharge.  The applicant recalls that during his out processing, he was offered a reassignment instead of the undesirable discharge, but chose the discharge.  He adds that he was young and stupid.  

3.  The applicant provides a copy of his VA Form 21-22 (Appointment of Veterans Service Organization As Claimant's Representative).

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 record shows he enlisted in the Regular Army and entered active duty on 29 September 1967.  He was 19 years old at the time of enlistment.

3.  On 19 April 1968, while assigned to Edgewood Arsenal, Maryland, nonjudicial punishment (NJP) was imposed against the applicant for failing to go to his appointed place of duty.  His punishment consisted of extra duty for 14 days.

4.  On 14 February 1969, while stationed in Germany, NJP was imposed against the applicant for being AWOL from 6 February 1969 to 13 February 1969.  His punishment consisted of reduction to the grade of private (E-2), forfeiture of $25.00 per month for one month, restriction for 7 days, and extra duty for 7 days.

5.  On 6 March 1969, while stationed in Germany, NJP was imposed against the applicant for being AWOL from 4 March 1969 to 5 March 1969.  His punishment consisted of forfeiture of $25.00 per month for one month, restriction for 10 days, and extra duty for 10 days.  

6.  On 6 March 1969, the applicant underwent a psychiatric evaluation in which he was diagnosed with a passive aggressive personality.  The evaluation found that the applicant was immature, young, and had no motivation to remain in the military.  He had no psychosis or neurosis and the psychiatrist felt that he could not be rehabilitated to remain in the military.  The applicant was recommended for administrative separation under the provisions of Army Regulation 635-212.  

7.  The facts and circumstances pertaining to the applicant’s discharge proceedings under the provisions of Army Regulation 635-212 were not contained in his military records.

8.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged under conditions other than honorable on 26 June 1969.  The reason and authority for discharge was listed as Army Regulation 635-212, Separation Program Number 386 (an established pattern for shirking).  The applicant completed 1 year, 8 months, and 28 days of total active service with 6 days lost under USC 972.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
10.  Army Regulation 635-212 (Discharge - Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unsuitability and for unfitness.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7, 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.  

12.  Army Regulation 635-200, paragraph 3-7, 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 argues, in effect, that his discharge should be upgraded because he was young and stupid at the time he entered the military.  Evidence of record shows that the applicant was 19 years old at the time of his offenses. There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, the contention by the applicant that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.




2.  Further, the applicant insinuates that his AWOL was due to the stress he was under while stationed in Germany and his commander's denial of his leave.  However, there is no evidence and he has not provided any to substantiate his claim and/or show that he sought counseling to alleviate his stress.  

3.  Although a copy of the applicant's discharge documents are not in his file, the presumption of regularity must be applied.  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 that requirement.

4.  The applicant's record of service included three NJPs.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis to upgrade the applicant's discharge.

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)                                         AR20090008298





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ABCMR Record of Proceedings (cont)                                         AR20090008298



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