BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100007756 


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

2.  The applicant states he was only 17 years old and did not adjust to military life.

3.  The applicant provides 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.  The complete facts and circumstances of the applicant's discharge are not available for review.  There are, however, sufficient records available to make a fair and impartial decision in this case.

3.  The applicant enlisted in the Regular Army on 30 January 1968.  A DD Form 373 (Consent, Declaration of Parent or Legal Guardian) shows his date of birth as 25 November 1950.  He was 17 years of age at the time and enlisted with the consent of his father.  He was trained in and awarded military occupational specialty 13A (Field Artillery Basic).

4.  Special Court Martial Order Number 27, Headquarters, 7th Infantry Division Artillery, dated 25 November 1968, shows the applicant was convicted of violation of Article 134 of the Uniform Code of Military Justice (UCMJ) for possession of marijuana.  He was sentenced to forfeit $73.00 per month for 6 months, to perform hard labor for 6 months, and to be reduced to the grade of private/E-1.

5.  Special Orders Number 176, Headquarters, 7th Infantry Division, dated 25 June 1969, show the applicant was punished for misconduct by forfeiture of $58.00 per month for 1 month.

6.  Special Orders Number 199, Headquarters, 7th Infantry Division, dated 18 July 1969, show the applicant was punished for misconduct by forfeiture of $50.00 per month for 1 month.

7.  The applicant's record includes a DA Form 2496 (Disposition Form), comment 2, dated 5 August 1969, showing the elimination proceedings against him were found to be legally sufficient.

8.  A memorandum signed by the applicant, dated 18 August 1969, shows he acknowledged receipt of one copy of the case file for his discharge for unfitness.

9.  An Office of the Surgeon General Form 84 (Clinical Record Cover Sheet), dated 28 August 1969, shows the applicant was diagnosed with "immature personality" that existed prior to service.  The form also shows in item 39 (Nature of Disposition) a recommendation for separation under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) due to the aforementioned diagnosis.

10.  Special Orders Number 240 Extract, Headquarters, U.S. Army Personnel Center, dated 28 August 1969, discharged the applicant effective 28 August 1969.  The orders show he was discharged under other than honorable conditions as the result of a bad act or acts under the provisions of Army Regulation 635-212.  He received a DD Form 258A (Undesirable Discharge Certificate).

11.  The applicant's DD Form 214 shows he was discharged under other than honorable conditions on 28 August 1969.  He completed 1 year, 6 months, and 28 days of active military service.

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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.  

14.  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 request for upgrade of his discharge under other than honorable conditions to general under honorable conditions is not supported by the evidence.

2.  The evidence of record shows the applicant was 17 years of age when he enlisted and that he was diagnosed with "immature personality," a condition he had prior to entering military service.  However, the applicant has not provided documentation showing, nor does the evidence of record show, any irregularities in the administrative proceedings that led to his discharge or that his rights were not protected throughout the proceedings.

3.  Based on his record of indiscipline, which includes a conviction by special court-martial and punishment twice for misconduct, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or general discharge.

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)                                         AR20100007756



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         A