IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100001011 


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 discharge be upgraded.

2.  The applicant states he feels the punishment has been fulfilled.  The discharge should be upgraded and the stigma removed.  He is a changed man due to his belief in Jesus Christ.  As a young man, he was very ignorant and immature.  He has been a good citizen since converting to Christianity in 1970.  He has raised two sons who are Iraq war veterans and are now in the Naval Reserve.

3.  The applicant provides three letters from individuals who support his request.

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 was inducted into the Army of the United States on 25 May 1966 at the age of 19 1/2 years with 11 1/2 years of education.  He completed training without a discreditable incident and with "excellent" conduct and efficiency ratings.

3.  He was awarded military occupational specialty 76A as a quartermaster supply specialist and was posted to Vietnam, arriving on 8 December 1966.  He was advanced to pay grade E-3 on 5 January 1967.

4.  The applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, as follows:

* 9 April 1967 for being off limits (failure to obey orders) – reduced to pay grade E-2 and forfeited $25.00
* 7 May 1967 for being absent from his place of duty and being disrespectful in language to a staff sergeant – reduced to pay grade E-1 and extra duty for 15 days
* 21 June 1967 for willfully disobeying a first sergeant – extra duty for 14 days
* 10 July 1967 for being absent from his place of duty – extra duty for 14 days

5.  On 4 August 1967, a special court-martial found the applicant guilty of possession of marijuana and sentenced him to 6 months of confinement and forfeiture of $64.00 per month for 6 months.  The findings and sentence were approved.

6.  A DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 10 September 1967, noted that the applicant was "under Board actions for elimination under Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability)."

7.  In a DA Form 2496 (Disposition Form), dated 27 September 1967, a staff judge advocate concluded that the proceedings were conducted in compliance with the requirements of Army Regulation 635-212 and that approval for elimination for unfitness was justified.  The staff judge advocate recommended the case be forwarded to the general court-martial convening authority.

8.  On 24 November 1967, the applicant was separated with an undesirable discharge under the provisions of Army Regulation 635-212 and assigned a separation program number of 28B for frequent incidents of a discreditable nature with military or civilian authorities.  He had completed 1 year, 2 months, and 18 days of creditable service.

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

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) provided 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.

11.  Army Regulation 635-200 (Personnel Separations), 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-5, states, "The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence."

14.  The three letters submitted by the applicant to support his request speak to his character, honesty, and integrity as a contractor and as a person.  They support his request to change the discharge.  As one says, "Please consider changing his discharge to represent the man he is today."

DISCUSSION AND CONCLUSIONS:

1.  The applicant feels his punishment has been fulfilled.  The discharge should be upgraded and the stigma removed.  He is a changed man due to his belief in Jesus Christ.  As a young man, he was very ignorant and immature.  He has been a good citizen since converting to Christianity in 1970.

2.  The discharge process must be presumed to have been in accordance with applicable law and regulations and the applicant's discharge appropriately characterizes his service in the absence of evidence to the contrary.  There is nothing in the available records or the applicant's assertions to overcome this presumption.

3.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant had satisfactorily completed training and almost a year in the Army and been advanced to pay grade E-3 before any negative incidents were documented.  This clearly demonstrates his capacity to serve and shows that he was neither too immature nor incapable of doing so.

5.  The applicant's post-service maturity and integrity as evidenced by the letters of support are noted.  However, these factors do not outweigh the fact that his misconduct first degraded and then ended his useful military service.

6.  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 and/or argument that would satisfy this requirement.

7.  In view of the foregoing there is no basis for granting the applicant's requested relief.

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)                                         AR20100001011



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ABCMR Record of Proceedings (cont)                                         AR20100001011



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