IN THE CASE OF:	  

		BOARD DATE: 	       12 November 2009 

		DOCKET NUMBER:  AR20090008608 


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 upgrade of his under other than honorable conditions discharge to an under honorable conditions (general) discharge.

2.  The applicant states he was a young kid who was in love and had never been away from home when he went absent without leave (AWOL) from the Army.  He also states he was a good Soldier, he did not do drugs, did not hurt anyone, made this one mistake, and he has paid for it.  He adds that his health is poor and he cannot work.

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 had prior enlisted service in the Army National Guard of the United States from August 1973 to August 1974.

3.  The applicant enlisted in the Regular Army on 28 August 1974 for a period of 3 years.  Records show the applicant was 19 years of age at the time of his enlistment.

4.  On 22 July 1975, the applicant received nonjudicial punishment (NJP) under Article15, Uniform Code of Military Justice (UCMJ), for treating with contempt his superior noncommissioned officer (NCO) who was then in the execution of his office.  His punishment consisted of forfeiture of $50.00 for one month, 7 days restriction, and 7 days of extra duty.

5.  On 16 September 1975, the applicant received NJP under Article15, UCMJ, for being disrespectful in language toward his superior NCO who was then in the execution of his office and for failing to obey a lawful order issued by his superior NCO.  His punishment consisted of reduction to private (E-2), forfeiture of $50.00 for one month (suspended for 30 days), 7 days restriction, and 7 days of extra duty.

6.  On 15 January 1976, the applicant received NJP under Article 15, UCMJ, for being AWOL from his unit from 29 to 30 December 1975.  His punishment consisted of reduction to private (E-1) and forfeiture of $84.00 for one month.

7.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in Item 21 (Time Lost) that he was AWOL for 1 day on 29 December 1975 and AWOL for 3 days from 20 to 22 April 1976.

8.  On 17 March 1976, the applicant's commander notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5a(1), for unfitness.  The applicant was advised of his rights and the separation procedures involved.

9.  On 17 March 1976, the applicant acknowledged receipt of the notification of separation action for unfitness. 

   a.  He acknowledged that military legal counsel for consultation was available to assist him.

   b.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him.  He was also advised that as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and States laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

   c.  The applicant waived consideration of his case by a board of officers and personal appearance before a board of officers.  He also elected not to submit statements in his own behalf and waived representation by military counsel.  

   d.  The applicant and his legal counsel each placed their signature on the document.
   
10.  On 18 March 1976, the company commander recommended the applicant be discharged from the U.S. Army under the provisions of Army Regulation 635-200, paragraph 13-5a(1), for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  The reasons for the recommended action were the applicant's NJP under Article 15, UCMJ (i.e., on three occasions), and nine counseling sessions relating to his misconduct and poor performance.  

11.  The battalion commander and brigade commander each recommended approval of the separation action.

12.  On 7 April 1976, the major general serving as the general court-martial convening authority and the authorized separation authority in the applicant's case, waived the rehabilitative requirements and approved the applicant's separation.  The commander also directed the applicant be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate with Separation Program Designator (SPD) Code "JLB."

13.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions on 27 April 1976, under the provisions of Army Regulation 635-200, chapter 13-5a, with SPD "JLB."  At the time he had completed 1 year, 7 months, and 26 days of net active service.  Item 21 (Time Lost) shows he had 4 days of time lost.

14.  On 31 March 1989, the applicant applied to the Army Discharge Review Board (ADRB) requesting upgrade of his discharge.  On 12 February 1990, the ADRB closed the applicant's case based on his request that his application be withdrawn.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a of the regulation in effect at the time 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 was normally considered appropriate.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JLB" as the appropriate code to assign enlisted Soldiers involuntarily discharged under the provisions of Army Regulation
635-200, paragraph 13-5a(1), for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.

17.  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 under other than honorable conditions discharge should be upgraded to an under honorable conditions (general) discharge because he was young and made only one mistake during the period of his military service.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  Records show the applicant completed training and he was 20 years of age at the time his initial act of misconduct.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Records show the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 13-5a, based on frequent incidents of a discreditable nature with civil or military authorities was administratively correct and in compliance with applicable regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, records show the applicant was properly and equitably separated from active duty.  Therefore, considering all the facts of this case, the type of discharge and character of service directed were appropriate.

4.  The applicant's military service records show he was counseled on at least nine occasions, received NJP on three occasions, and he had 4 days of time lost during the period of service under review.  Thus, the applicant's record of service clearly shows that his overall quality of service was not satisfactory and it did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to upgrade of the character of service of his 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.  Therefore, in view of all 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)                                         AR20090008608



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ABCMR Record of Proceedings (cont)                                         AR20090008608



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