IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100029926 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to upgrade his Under Other Than Honorable Conditions Discharge to a General Discharge, under honorable conditions.

2.  He states, in effect, he was only 16 years of age at the time he enlisted in the South Carolina Army National Guard (SCARNG) and was only 17 years old when he enlisted in the Regular Army.  He contends he was not mature enough to perform as a Soldier due to various family issues at home.  He had to provide dependent care for his mother and his younger brother.  He also had a brother who served in Vietnam from 1968 through 1969. 

3.  He provides:

* several copies of the same letter of support from his brother
* two DD Forms 214
* a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service in the SCARNG and as a Reserve of the Army)
* an NGB Form 23 (Retirement Credits Record)
* his baptismal certificate
* an identification card 




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.  His NGB Form 23 shows his inclusive dates of service in the SCARNG began on 20 August 1964 when he was 18 years, 6 months, and 4 days old.  His NGB Form 22 shows he was discharged from the SCARNG on 10 August 1966 and enlisted in the Regular Army on 11 August 1966.  He was 20 years, 5 months, and 26 days old.  After the completion of training he served in military occupational specialty (MOS) 12B Pioneer. 

3.  His DA Form 20 (Enlisted Qualification Record) shows:

* Item 31 (Foreign Service) – none
* Item 33 (Appointments and Reductions) – he attained the rank of private first class/E-3 
* Item 38 (Record of Assignments) – in the area of conduct and efficiency, he received 3 ratings of "excellent"; 2 ratings of "fair"/"good"; and 2 of "unsatisfactory"
* Item 41 (Awards and Decorations) – no acts of valor or special recognitions
* Item 44 (Lost Time Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) – a total of 537 days due to absent without leave (AWOL) status and military confinement 

4.  He was administered nonjudicial punishment (NJP) on 5 April and 19 June 1967 for failing to go to his prescribed place of duty and for going AWOL. 

5.  His record contains Headquarters (HQS), 91st Engineer Battalion (Combat), Special Court-Martial (SPCM) Order Number 50, issued on 13 December 1967.  He pled guilty to and was convicted of three specifications of violating Article 91 of the Uniform Code of Military Justice (UCMJ) on 8 November 1967:

* hitting a superior noncommissioned officer (NCO) on the head with his hand
* disobeying a lawful order from a superior NCO
* using disrespectful language toward a superior NCO

6.  He was sentenced to 6 months confinement, forfeiture of pay for 6 months and reduction to the grade of private/E-1.

7.  HQS, Troop Command, U.S. Army Garrison, SPCM Order Number 1700, dated 19 August 1968, shows he pled guilty to and was convicted of violating Article 86 of the UCMJ by going AWOL from 20 March to 22 July 1968.  He was sentenced to 6 months confinement and forfeiture of pay.

8.  His record also contains HQS, Brigade (Provisional), U.S. Army School/Training Center and Fort Gordon, SPCM Order Number 37, issued on      9 May 1969.  This order shows he plead guilty to and was convicted of violating Article 86 of the UCMJ by going AWOL from 12 November 1968 to 15 April 1969.  He was sentenced to 6 months, confinement, forfeiture of pay and reduction to 
private/E-1.

9.  HQS, Brigade (Provisional), U.S. Army School/Training Center and Fort Gordon, SPCM Order Number 62, issued on 4 June 1969, shows that all portions of the sentence, which were ordered in SPCM Order Number 37, dated 9 May 1969, were set aside.

10.  On 10 June 1969, he was issued an order not to reenter Fort Gordon, GA and he acknowledged receipt of the order on 11 June 1969. 

11.  His record contains a DA Form 2496-1 (Disposition Form), Subject:  Receipt for Elimination Proceedings, dated 11 June 1969.  This document shows the applicant was offered a copy of the proceedings leading to his discharge under the provisions of Army Regulation 635-212 (Discharge-Unfitness and Unsuitability).  He acknowledged receipt of the said document by signing the form.

12.  His record is absent a copy of the elimination proceedings; however, his 
DD Form 214 for the period ending 11 June 1969 shows he was discharged under other than honorable conditions, under the provisions of Army Regulation 635-212  by reason of unfitness and was issued a DD Form 258A (Undesirable Discharge Certificate).  He completed a total of 2 years, 4 months, and 22 days of creditable service and had 537 days of lost time due to AWOL and military confinement.  

13.  The letter of support from the applicant’s brother opines the following on his brother’s behalf:

    a.  He was only 16 years of age at time of enlisting in military service and completed training in MOS 12A combat engineer. 
   
    b.  He received an Honorable Discharge from the SCARNG on 10 August 1966, at the age of 18 and had a total of 2 years, 4 months, and 22 days of good service between the SCARNG and the Regular Army.
    
    c.  His father was killed in a truck accident when he was 3 years old and his oldest brother was killed in an auto accident at the age of 17, while serving in the SCARNG.
    
    d.  During his teenage years, he lived in Charleston, SC with his uncle during the summer months.  He attended high school in either Charleston or Blackville, SC.
    
    e.  When serving in the U.S. Army, the applicant provided a monthly allotment to help take care of his mother and other siblings.  
    
    f.  He had four family members, who included immediate members and cousins, who served in Vietnam as U.S. Army paratroopers with the 173rd Airborne Brigade. 
    
    g.  His post-military history shows he was employed with Daniel Construction Company as a Construction Superintendant from 1970 to 1995 and is presently retired and living alone.
    
    h.  He has one daughter and a son-in-law who both graduated college, and three grandsons from the same.  He had another son who died at the age of one week old from respiratory issues.
    
    i.  He has been a church member with Calvary Baptist Church since 1973 and is actively involved with worshiping and various church activities.  
    
14.  His brother also states that applicant’s birth certificate shows his correct date of the birth as 29 May 1948, which meant he began serving at the age of 16 years old and he was not mature enough to perform as a Soldier. 

15.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 
16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities or an established pattern showing dishonorable failure to pay just debts, were subject to separation for unfitness. Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort was unlikely to succeed.

17.  Army Regulation 635-200 (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.  

DISCUSSION AND CONCLUSIONS:

1.  He contends his Under Other Than Honorable Conditions Discharge should be upgrade to a General Discharge, under honorable conditions because he was not mature enough to perform as a Soldier due to his family obligations.  His post-military conduct was also considered.  

2.  Although his correct birth certificate shows his age as 16 years old upon entry in the SCARNG, and 17 years old upon entry in the Regular Army, there is no evidence to show, and he has not provided sufficient evidence to show, that he was any less mature than other Soldiers his age who successfully completed their military obligation.

3.  His record shows he received NJP on two occasions and was convicted by three special courts-martial.  He also had 537 days of lost time due to AWOL and military confinement.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a General Discharge.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on the processing procedures for separation and specific guidance in determining the character of service and description of separation.  

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

6.  In view of the foregoing, there is insufficient evidence to grant the requested relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




      _______ _   _______   ___
               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)                                         AR20100029926





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ABCMR Record of Proceedings (cont)                                         AR20100029926



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