IN THE CASE OF:	  

		BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090012458 


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 honorable.

2.  The applicant states that he was young and immature at the time and made mistakes.  He has since straightened up and paid his dues.

3.  The applicant provides, in support of his application, a copy of his 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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 11 February 1969, the applicant, at 18 years and 9 months of age, enlisted in the Regular Army for 2 years.  He was assigned to Fort Benning, Georgia, where he completed basic combat training.  

3.  On 18 April 1969, the applicant departed Fort Benning for assignment to Fort Gordon, Georgia, to enroll in advanced individual training (AIT).

4.  On 29 May 1969, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL).  The punishment included a forfeiture of $10.00 pay for 1 month.

5.  On 16 June 1969, the applicant received NJP for being AWOL from 2 through 
15 June 1969.  His punishment included a verbal reprimand, a forfeiture of $50.00 pay for 2 months, restriction for 45 days, and 30 days of hard labor.

6.  On 15 October 1969, the applicant was convicted by a special court-martial of being AWOL from 19 June to 23 September 1969.  His sentence consisted of confinement at hard labor for 4 months and a forfeiture of $76.00 pay for
4 months.

7.  On 4 January 1970, the applicant was assigned to Fort Leonard Wood, Missouri, for training in military occupational specialty (MOS) 12A (Pioneer).

8.  On 24 January 1970, the applicant received NJP for being AWOL from 
4 to 21 January 1970.  The punishment included a forfeiture of $20.00 pay for
2 months and restriction and extra duty for 30 days.

9.  On 2 March 1970, the applicant departed Fort Leonard Wood, Missouri for assignment in Europe.

10.  On 30 November 1970, the applicant was convicted by a special court-martial of being AWOL from 6 April to 11 July 1970 and from 14 August to 2 November 1970.  His sentence consisted of confinement at hard labor for 6 months, a forfeiture of $80.00 pay per month for 6 months, and reduction to pay grade E-1.

11.  On 8 December 1970, the applicant’s unit commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212 for unfitness.  




12.  On 14 December 1970, the applicant received legal counseling and waived consideration of his case by a board of officers, waived a personal appearance, waived representation by counsel, and declined to submit a statement in his own behalf.

13.  On 7 January 1971, the applicant’s unit commander initiated separation action under the provisions of Army Regulation 635-212 for unfitness.  

14.  On 24 January 1971, the appropriate authority approved the separation action and directed issuance of DD Form 258A (Undesirable Discharge Certificate).  Accordingly, the applicant was discharged on 1 February 1971.  His  DD Form 214 shows he had completed 6 months and 26 days of creditable active service and he had 505 days of lost time due to being AWOL and in confinement.

15.  There is no evidence that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation 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 Certificate was normally considered appropriate.

17.  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.

18.  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 he was young and immature at the time and made mistakes.  He has since straightened up and paid his dues and believes his discharge should be upgraded to honorable.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.  

3.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was almost 19 years of age at the time of his enlistment.  There is no evidence of record showing that his age or level of maturity caused him to go AWOL. 

4.  Based on the applicant's record of multiple and lengthy periods of being AWOL, his service clearly does not meet the standards of acceptable conduct.  Therefore, he is not entitled to an upgrade 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 the aforementioned requirement.

6.  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)                                         AR20090012458



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ABCMR Record of Proceedings (cont)                                         AR20090012458



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