IN THE CASE OF:	   

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110004464 


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 discharge to honorable.

2.  He states, in effect, he joined the Army at 17 to break a cycle of abuse at home.  He was naïve and was not used to the influence of other young men his age, and got involved with the wrong ones.  The company he kept led to the problems that resulted in his discharge in 1971. 

3.  He provides:

* a self-authored statement
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a DD Form 4 (Enlistment Contract - Armed Forces of the United States)
* a DA Form 20 (Enlisted Qualification Record)
* a DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ)
* pages from his service medical records

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 enlisted in the Regular Army on 27 September 1968.  He was age 17 at the time, and his mother consented to his enlistment for a period of 3 years.  On 8 October 1969, he was honorably discharged to immediately reenlist.  On 9 October 1969, he reenlisted for a period of 6 years.

3.  On 2 January 1970, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 14 to 23 December 1969.  His punishment was to be reduced by one grade, to forfeit $26 for 1 month, and restriction and extra duty for 14 days.

4.  Special Orders Number 5 Extract, issued by Headquarters, 24th Infantry Division, Fort Riley, KS, dated 5 January 1970, ordered his forfeiture of $25 per month for one month as NJP under the provisions of Article 15, UCMJ, for misconduct effective 10 September 1969, the date of verbal orders of his commanding officer. 

5.  On 26 June 1970, he received NJP under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty.  His punishment was forfeiture of $37 per month for 1 month and restriction and extra duty for 7 days.

6.  Special Court-Martial Order Number 43, issued by Headquarters, 2d Brigade, 1st Infantry Division, Fort Riley, KS, dated 10 November 1970, shows he was found guilty of one specification of being AWOL.  He was sentenced to forfeit $70 per month for 6 months, to be reduced to private/E-1, and to be restricted to the limits of Fort Riley, KS, for 30 days.   

7.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS [Expiration Term of Service]) of his DA Form 20 shows he was:

* AWOL during the following periods:

* 28 November to 23 December 1969
* 11 to 27 July 1970
* 5 to 6 August 1970
* 17 August 1970

* in confinement during the following periods:

* 28 July to 4 August 1970
* 27 August to 22 October 1970
* 19 November 1970 to 4 January 1971

* dropped from the rolls from 18 to 26 August 1970

8.  The complete facts and circumstances leading to his discharge are not contained in the available records.  However, his record contains:

	a.  Special Orders Number 83 Extract, issued by Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, Fort Riley, KS, dated 24 March 1971, showing he received an undesirable discharge effective 25 March 1971 under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability); and

	b.  a properly-constituted DD Form 214 for the period ending 25 March 1971, showing:

* he was discharged under the provisions of Army Regulation 635-212
* he was assigned Separation Program Number (SPN) "28B" 
* his service was characterized as under conditions other than honorable
* he was issued DD Form 258A (Undesirable Discharge Certificate)
* he had 167 days lost

9.  Army Regulation 635-5-1 (Separation Program Numbers), in effect at the time of the applicant's separation from active duty, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies SPN “28B” as the appropriate code to assign enlisted Soldiers discharged for unfitness who are involved in frequent incidents of a discreditable nature with civil or military authorities.

10.  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 of the regulation 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.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7a provides that an honorable discharge (HD) 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.

   b.  Paragraph 3-7b provides that a general discharge (GD) 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 evidence of record does not support the applicant's request for upgrade of his discharge to honorable.  

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  In the absence of documentation showing otherwise, it is presumed that all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  He was 17 years of age when he enlisted; however, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.  

4.  His record includes two instances of NJP and 167 days of time lost due to AWOL and confinement.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD or a GD.

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)                                         AR20110004464





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ABCMR Record of Proceedings (cont)                                         AR20110004464



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