BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090008362 


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 a general discharge.

2.  The applicant states that he was only 17 years old at the time of his enlistment and that he was 19 years old at the time of his discharge.  He states that he did not fully understand the consequence of a bad discharge and that he was not afforded counsel during two of his courts-martial.  He states he believes his punishment was too severe for the crime.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty); and two Letters of Commendation dated 14 May 1973. 

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 10 January 1973, the applicant enlisted in the Regular Army in Louisville, Kentucky, at age 17, in the pay grade of E-1.  He successfully completed his training as a pioneer.

3.  The applicant had nonjudicial punishment (NJP) imposed against him on seven separate occasions between 26 March 1973 and 29 January 1975 for wrongfully using provoking words towards another Soldier; disobeying a lawful order to be in the barracks after 2200 hours every night; stealing a Kodak Pocket Instamatic 20 Camera from another Soldier; wrongfully having in his possession an undetermined amount of a control substance (marijuana); having in his possession .31 grams of marijuana; and being absent without leave (AWOL) from 18 December 1974 until 19 December 1974.  

4.  On 17 April 1974, the applicant was convicted, pursuant to his pleas, by a special court-martial of willfully disobeying a lawful order from his superior commissioned officer to return to his position as point man; and being drunk and disorderly.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of pay in the amount of $200.00.

5.  The applicant’s record show that on 26 February 1975, he refused to participate in physical training (PT); on 27 March 1975, he refused to get out of bed; on 31 March 1975, he refused to participate in PT; and on 2 April 1975, he was placed in disciplinary segregation.  

6.  Although the special court-martial order is not contained in the available record, the applicant was convicted by a special court-martial on 9 April 1975 of assaulting a noncommissioned officer.  

7.  A Mental Status Evaluation conducted on 7 May 1975 shows that the applicant had no significant illness; he was mentally responsible; he was able to distinguish right from wrong and to adhere to the right; he had the mental capacity to understand and to participate in board proceedings; and he met the retention standard prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

8.  On 14 May 1975, the applicant notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness.  He acknowledged receipt of the notification and, after consulting with 

counsel, he waived his right to submit a statement in his own behalf.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued and that he understood that as a result of an undesirable discharge he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  The appropriate authority approved the recommendation for discharge on 19 May 1975 and he directed the issuance of an undesirable discharge.  Accordingly, on 21 May 1975, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness, due to frequent incidents of a discreditable nature with military or civilian authorities.  He completed 1 year, 10 months, and 9 days of net active service and had 183 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

10.  The applicant submits two Letters of Commendation dated 14 May 1973.  One letter is addressed to his mother and the other is addressed to him.  The letter addressed to him is from his commanding officer (CO) congratulating him on his selection as the outstanding member of the Brigade Guard on 11 May 1973.  The letter addressed to his mother is from his CO notifying her of the applicant’s outstanding performance as a member of the Brigade Guard. 

11.  A review of the applicant’s records does not show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 at the time contained the policy and outlined the procedures for separating individuals for unfitness.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  An undesirable discharge was normally considered appropriate.

13.  Paragraph 3-7a of Army Regulation 635-200 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.  Paragraph 3-7b of Army Regulation 635-200 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 general discharge as he was only 17 years old at the time of his enlistment and did not fully understand the consequences of a bad discharge.

2.  His contentions have been noted and his supporting documents have been considered.  However, his age at the time of his enlistment is not sufficiently mitigating to warrant the requested relief.  The applicant’s records show that he had NJP imposed him on seven separate occasions and he was convicted by two special courts-martial as a result of his numerous acts of indiscipline.

3.  The applicant’s contentions that he was not afforded counsel during his 
courts-martial and that his punishment was too severe for the crimes have also been noted.  However, there is no evidence in the applicant’s records, nor has he provided any evidence, that shows that he was not afforded the opportunity to consult with counsel prior to the imposition of his punishments or prior to his courts-martial.  

4.  The applicant acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued and that he understood that as a result of an undesirable discharge he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

5.  Considering the nature of his court-martial offenses and his overall record of service, it does not appear that his undesirable discharge is too severe.

6.  In order to justify correction of a military record the applicant must show 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 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)                                         AR20090008362



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ABCMR Record of Proceedings (cont)                                         AR20090008362



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