BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100012910 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant states he was told his discharge could be upgraded after so many years.  He was young and stupid at the time it happened.  Since his discharge, he has raised six children and worked 4 years in Iraq supporting our troops and training them in support of Operation Iraqi Freedom.

3.  The applicant provides a certificate of achievement, a letter of appreciation, and a certificate of appreciation for his support of Operation Iraqi Freedom.

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 record shows he was 17 years of age when he enlisted in the Regular Army on 9 February 1970.  He was awarded military occupational specialty 31M (Radio Mechanic).  He immediately reenlisted on 8 March 1972 for a period of 6 years.  He was assigned to Headquarters and Headquarters Battery, 30th Artillery (Air Defense Artillery), in Okinawa and to Battery A, 1st Battalion, 44th Air Defense Artillery (Hawk), in Korea during this enlistment period.

3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on:

* 5 September 1972, for being absent without leave (AWOL)
* 4 January1973, for three specifications of failure to go to his appointed place of duty
* 26 March 1973, for three specifications of failure to go to his appointed place of duty
* 8 August 1973, for two specifications of being AWOL
* 13 August 1973, for being AWOL
* 23 August 1973, for breaking restriction

4.  The records shows he was counseled on six separate occasions in regard to his conduct, being AWOL, breaking restriction, personal appearance, apathetic attitude on duty, and misconduct off duty.

5.  On 31 October 1973, his immediate commander informed him that he intended to recommend him for elimination from the service for unfitness under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  Specifically, the immediate commander cited his incidents of a discreditable nature with civil and military authorities, lack of appropriate interest in the performance of duty, and inability to expend efforts constructively (continuous misbehavior).

6.  On 31 October 1973, he submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated action against him for unfitness.  He waived consideration of his case by a board, personal appearance before a board of officers, and representation by counsel.  He did elect to submit statements in his own behalf.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life in the event that a general discharge was issued to him.  He further acknowledged that as the result of the issuance of an undesirable discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

7.  In his statement, he contends that his trouble began when he was involved in an automobile accident in Japan which caused him to be in and out of Japanese court for 9 months.  He was under considerable pressure and was facing 2 to 5 years of jail time.  He eventually received a 6-month suspended sentence and 3 years of probation.  He was transferred to Korea as a result.  He requests these circumstances be taken into consideration and he be given a discharge other than undesirable.  Further, it would not benefit him or the military for him to remain in the Army.

8.  On 6 November 1973, his immediate commander initiated elimination action against him under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness.  His commander noted that the applicant was awaiting a special court-martial for the possession of marijuana, was barred to reenlistment, and was investigated for the alleged assault and battery of a Korean National.  Further, he was pending Article 15 charges for dereliction of duty, AWOL, and resisting apprehension.

9.  On 26 November 1973, the convening/separation authority approved the request for discharge and directed the applicant be discharged under the provisions of paragraph 13-5a(1) of Army Regulation 635-200 by reason of unfitness and that he be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 3 December 1973.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 3 years, 9 months, and 14 days of creditable active military service.

10.  He submits certificates of achievement and letters of appreciation for his work in supporting the Marine Corps during Operation Iraqi Freedom.

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 contained the policy and outlines the procedures for separating individuals for unfitness.  It provided 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.

13.  Army Regulation 635-200, 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 contends his undesirable discharge should be upgraded.

2.  The evidence of record shows he was 17 years of age at the time of his enlistment and between 20 and 21 years of age at the time of his various offenses.  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.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing his acts of misconduct were the result of his age.

3.  His records reveal an extensive history of counseling, indiscipline, and/or misconduct including NJP, AWOL, and a pending court-martial.  Accordingly, his chain of command initiated separation action against him.  His discharge was in accordance with the applicable regulation, all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  In view of the foregoing, his request should be denied.

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)                                         AR20100012910



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012910



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1