IN THE CASE OF:	  

		BOARD DATE: 	        12 November 2009 

		DOCKET NUMBER:  AR20090010132 


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 undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states that he entered the service with the intent to excel with great gusto.  He wanted to be a proud and diligent Soldier.  Drinking at the EM [enlisted member's] club was "highly encouraged."  He did not know about addictive personalities.  He drank every day, smoked marijuana, and took pills.  His work ethic diminished.  His standards lowered and his self-esteem bottomed out.  He did not know who to ask for help, or how to ask for help.  Today, he strives to be a better person by helping others and continuing to serve God and country.  He contends that he did not know there would be a robbery or shooting.  He was present with his buddy and has been so very sorry.   

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), 
DD Form 4 (Enlistment Record), DA Form 20 (Enlisted Qualification Record), five DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), portions of his service medical records, resume and letters of recommendation, Walden House certificates of completion and accomplishment, certificate of ordination, and marriage certificate. 





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 25 January 1966, the applicant enlisted in the Regular Army (RA) for
3 years.  He completed his initial training and he was awarded military occupational specialty (MOS) 11C (Infantryman Indirect Fire Crewman).

3.  On 2 June 1966, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for being absent without authority (1 hour).  The punishment included a forfeiture of $7.00 pay per month for 1 month and
8 days of extra duty.

4.  On 12 June 1966, the applicant was assigned for duty with the 2nd Battalion,
17th Infantry Regiment, in the Republic of Korea.

5.  On 13 April 1967, the applicant accepted NJP for abandoning his guard post.  The punishment included a forfeiture of $25.00 pay per month for 1 month and 14 days of restriction (suspended).

6.  On 5 July 1967, the applicant failed to make a company formation with the mission of guarding the Vice President of the United States.  The commander informed the applicant of his intent to impose NJP.  The applicant's available records do not show the applicant's punishment for this misconduct.

7.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 shows that he was reduced to the rank/grade of private first class (PFC)/E-3, effective
6 July 1967.




8.  On 4 January 1968, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty.  The punishment included reduction to PFC/E-3, forfeiture of $28.00 pay per month for 1 month, and 14 days of extra duty.  The applicant appealed the punishment resulting in a revocation of the mistaken reduction to a grade that he already held.  

9.  On 25 March 1968, the applicant accepted NJP for disobeying an order and for being disrespectful to a commissioned officer.  The punishment included reduction to private (PV2)/E-2, forfeiture of $25.00 pay per month for 1 month (suspended), and 14 days of restriction.

10.  Item 42 (Remarks) of the applicant's DA Form 20, states, in pertinent part, that the applicant was arrested and confined in Columbus, GA on 3 October 1968.  He was subsequently convicted of assault with intent to murder and robbery by use of an offensive weapon.  He was sentenced to 20 years of hard labor in the Georgia Penitentiary.  

11.  The discharge packet is not contained in the applicant's available military records.  However, his DD Form 214 shows that he was administratively discharged on 7 April 1969, under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), for conviction by civil authorities.  His service was characterized as under conditions other than honorable with issuance of an Undesirable Discharge Certificate.  He had completed 2 years, 5 months, and 
23 days of creditable active service and he had 187 days of lost time.

12.  On 18 May 1973, the Army Discharge Review Board (ADRB) denied the applicant's request for upgrade of his discharge.

13.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 33 of the regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ was death or confinement n excess of   1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 governs the basic policy for the separation of enlisted personnel.  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 requests upgrade of his undesirable discharge to a general, under honorable conditions discharge.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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 the aforementioned requirement.

5.  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)                                         AR20090010132



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ABCMR Record of Proceedings (cont)                                         AR20090010132



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