IN THE CASE OF:	  

		BOARD DATE:	         20 October 2009

		DOCKET NUMBER:    AR20090008678 


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 (UD) be upgraded to a general under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he was only 16 years old and a ward of the state when he was inducted into the Army.  He also states that he was punished by court-martial for being in a fight and served 6 months in confinement.  The applicant states that he was subsequently told that he could not adjust to military life and was eliminated from military service with a UD.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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's official military personnel file (OMPF) contains a DD Form 373 (United States Armed Forces Consent, Declaration of Parent or Legal Guardian) that was completed during his enlistment process on 16 December 1966.  This document confirms that the applicant was born on 24 March 1949 and that his mother consented to his enlistment in the Army for a 3-year period at that time.

3.  On 30 December 1966, the applicant enlisted and entered active duty in the Regular Army at the age of 17 years, 8 months, and 23 days.  He was trained in, awarded, and served in military occupational specialty 61B (Water Craft Operator) and the highest rank he attained while serving on active duty was private/E-2 (PV2).

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 41 (Awards and Decorations) that he earned the Marksman Marksmanship Qualification Badge with Rifle Bar while serving on active duty.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code) shows that the applicant accrued 154 days of lost time during two separate periods of being absent without leave (AWOL) and one period of confinement.

5.  On 10 April 1967, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 31 March 1967 until on or about 9 April 1967.

6.  On 29 June 1967, a special court martial (SPCM) convicted the applicant of violating Article 128 (assault) of the UCMJ by wrongfully striking another Soldier in the face with his fist and foot.  The resulting punishment was confinement at hard labor for 6 months, forfeiture of $60.00 pay per month for 6 months, and a reduction to private/E-1.

7.  The applicant's OMPF contains seven statements from members of the applicant's chain of command, dated between 10 July 1967 and 12 March 1968.  These statements document multiple disciplinary infractions committed by the applicant that included the following:  missing formation, being disrespectful to his superior commissioned officer, showing disrespect toward his superior noncommissioned officers, making verbal threats to kill his superior noncommissioned officer, poor appearance, being disrespectful in language toward his superior commissioned officer, failing to obey the order of his superior commissioned officer, and poor personal hygiene.

8.  On 18 January 1968, the applicant underwent a psychiatric examination.  The examining physician determined the applicant had no disqualifying defects sufficient to warrant discharge processing through medical channels.  The applicant was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and that he had the mental capacity to understand and participate in board proceedings.  The attending physician recommended the applicant be administratively separated from the service under the appropriate regulation deemed advisable in his case.

9.  On 14 March 1968, the unit commander initiated separation action on the applicant and recommended he be discharged from the Army under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness.  The commander cited the applicant’s frequent incidents of a discreditable nature with military authorities and an established pattern of shirking his military duties and responsibilities as the basis for the separation action.

10.  On 15 March 1968, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and to counsel.  He further elected to make a statement in his own behalf.

11.  In his personal statement, the applicant indicated that he tried to soldier for the Army after serving time in the stockade for fighting; however, someone in the higher headquarters wanted him back in the stockade.  Accordingly, he claimed that he counteracted for his own self-preservation given that he was against an opposing force too big for him.  He claimed that there was racial prejudice in the Army and asked why his blood was good enough to flow and mix with others in the rice paddies and jungles of Vietnam, but not good enough to mix with theirs in the cities, streets, and neighborhoods elsewhere.  He finally stated that he was not unfit, but that he had no choice but to accept the reasons given for his discharge because he had enough of the mental and undue harassment.

12.  On 22 March 1968, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness and directed the applicant receive a UD.  On 25 March 1968, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed a total of 9 months and 22 days of creditable active military service and that he accrued 154 days of lost time due to AWOL and confinement.

13.  The applicant submitted a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 6 March 2009.  However, he exceeded the ADRB's 15-year statute of limitations and his application was forwarded to this Board for review.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an HD or GD if warranted by the member's overall record of service; however, a UD was normally considered appropriate for members separating under these provisions.

15.  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.

16.  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's contention that his UD should be upgraded to a GD because he was 16 years old and a ward of the state when he was inducted into the Army was carefully considered.  However, there is insufficient evidence to support his claim.  The evidence of record confirms the applicant was 17 years, 8 months, and 23 days of age at the time of his voluntary enlistment and that his mother gave her permission for him to enlist as evidenced by the DD Form 373 on file.

2.  The evidence of record in this case confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement. However, it does reveal an extensive disciplinary history that includes an SPCM conviction, his acceptance of NJP, and his accrual of 154 days of lost time.  As a result, it is clear the applicant's undistinguished record of service did not support the issuance of a GD or an HD by the separation authority at the time of his discharge, nor does it support an upgrade of his discharge at this late date.

4.  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.

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)                                         AR20090008678



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ABCMR Record of Proceedings (cont)                                         AR20090008678



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