IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100008677 


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, in effect, an upgrade of his undesirable discharge. 

2.  The applicant states he joined the Army at age 16.  The Army trained him and sent him to Fort Carson, CO.  Once there, he was discriminated against because of his age and race.  He was subjected to a "Code Red" and he was forced to resign because of the discrimination.  However, he was promised an honorable discharge.  He was young and immature and served under a chain of command that fabricated bogus charges against him; therefore, he went into an absent without leave (AWOL) status.

3.  The applicant did not provide any additional documentary evidence.

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's records show he was born on 21 March 1955 and he enlisted in the Regular Army for a period of 3 years at 17 years and 9 months of age on 8 December 1972.  He completed basic combat training but failed to complete advanced individual training and was awarded military occupational specialty 03C (Physical Activities Specialist) through on the job training.

3.  Between August 1973 and November 1974, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions for being AWOL (on three separate occasions) and disobeying a lawful order.

4.  On 18 July 1974, at Fort Campbell, KY, he pled guilty at a summary court-martial to one specification of being AWOL from 20 May 1974 to 19 June 1974.  The court sentenced him to a reduction in grade and a forfeiture of pay.  The convening authority approved his sentence on 19 July 1974.

5.  On 6 August 1974, the applicant's immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to unfitness.  Specifically, the immediate commander cited the applicant's lack of motivation or aptitude to become a productive Soldier.  He had been counseled on numerous occasions to no avail.  All attempts to rehabilitate him were met with negative results.  

6.  On 6 August 1974, he acknowledged he had been notified of the pending separation action against him and that he had been advised by counsel of the basis for the contemplated action to separate him for unfitness.  The applicant also requested consideration of his case by an administrative separation board, and elected to submit a statement on his own behalf.  In his statement, he indicated that he was 19 years old and went AWOL because of problems at home.  His father was sick and he was denied leave.

7.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He acknowledged he understood in the event of the issuance of an undesirable discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and may encounter substantial prejudice in civilian life.




8.  On 8 August 1974, his immediate commander initiated elimination action against him under the provisions of chapter 13 of Army Regulation 635-200 due to unfitness.  The immediate commander requested a waiver of any further requirements for counseling or rehabilitative transfer because prior attempts had failed.

9.  On 9 August 1974, his senior commander recommended approval of the request for discharge due to the applicant's unfitness.

10.  On 26 November 1974, an administrative separation board convened at Fort Campbell, KY, with the applicant and his appointed counsel present.  The board found the applicant performed frequent acts of a discreditable nature with military authorities and his rehabilitation was not deemed possible.  The board further recommended his discharge for unfitness with the issuance of an Undesirable Discharge Certificate.

11.  On 13 December 1974, the convening/separation authority approved the board's findings and recommendations and ordered that the applicant be issued an Undesirable Discharge Certificate.

12.  Accordingly, the applicant was discharged on 19 December 1974.  The 
DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with an Undesirable Discharge Certificate.  He had completed 1 year, 10 months, and 2 days of creditable active military service and he had 71 days of lost time.

13.  On 22 March 1977, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contains the policy and outlines the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent 
incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.



15.  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 his undesirable discharge should be upgraded.

2.  The available evidence shows the applicant was 17 years and 9 months of age at the time of his enlistment and 19 years of age at the time of his offense.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  Additionally, there is no evidence in the available records and he did not provide any evidence that shows his acts of misconduct were the result of his age.

3.  There is no evidence in his records that shows he was discriminated against or harassed because of his age or race or that he addressed such issues with his chain of command or other support channels.  

4.  His records reveal an extensive history of misconduct that included four instances of NJP, a court-martial, and multiple instances of AWOL.  He was provided multiple counseling and/or opportunities for rehabilitation by various members of his chain of command but he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.  

5.  The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

6.  He has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  Therefore, there is insufficient evidence to grant him the requested relief in this case.



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)                                         AR20100008677



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ABCMR Record of Proceedings (cont)                                         AR20100008677



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