IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100013468 


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 under other than honorable conditions discharge.

2.  The applicant states he was a 17-year old, young, and immature Soldier and did not really get the chance to spend his life in the military.  When he looks back at his service, he realizes how much he missed out on by not completing his service and all the wonderful and important things that the military does for people in their lives.  He loves his country and misses serving it.  He adds that it took him a long time to make the decision to request an upgrade of his discharge, but his health has gotten worse and he needs benefits through the Department of Veterans Affairs.

3.  The applicant provides:

* two unsigned letters of recommendation
* various medical documents

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 17 November 1956.  He enlisted in the Regular Army at 17 years and 8 months of age on 31 July 1974 and held military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  His records show he served in Germany from on or about 9 January 1975 to on or about 7 April 1976.  He was awarded the National Defense Service Medal.

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 11 December 1974, for wrongfully possessing marijuana
* on 17 March 1975, for being absent without leave (AWOL)
* on 12 June 1975, for disobeying a lawful order

5.  On 6 June 1975, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against him citing his inability to accept the responsibility of being a Soldier, placing his personal desires ahead of his military service, requiring intensive supervision to complete simple tasks, and becoming a liability to the unit.  The applicant was provided with a copy of this bar, but he elected not to submit a statement on his own behalf.  His bar was ultimately approved by the approval authority.

6.  His records reveal acceptance of additional NJP under the provisions of Article 15 of the UCMJ as follows:

* on 14 June 1975, for being disrespectful in language toward a superior noncommissioned officer and disobeying a lawful order
* on 9 December 1975, for theft
* on 12 February 1976, for failing to go at the time prescribed to his appointed place of duty

7.  His records also contain an extensive history of negative counseling by several members of his chain of command for various infractions, including multiple instances of failure to repair, disobeying orders, disrespect, theft or larceny, poor appearance, negative attitude, unsatisfactory performance, unsecure property, dereliction of duty, and possession of marijuana.

8.  On 8 April 1976, he was convicted by a special court-martial of one specification of theft.

9.  On 21 June 1976, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of misconduct for frequent incidents of discreditable nature.  The immediate commander recommended an under other than honorable conditions character of service.

10.  On 24 June 1976, he acknowledged receipt of the notification of his pending separation action.  He was advised by counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200.  He requested consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and elected not to submit a statement in his own behalf.  He further indicated he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that in the event of the issuance of an undesirable discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and he might encounter substantial prejudice in civilian life.

11.  On 24 June 1976, his immediate commander initiated separation action against him under the provisions of chapter 13 of Army Regulation 635-200.  Specifically, the immediate commander cited the applicant's frequent incidents of a discreditable nature including his NJP's, AWOL, and court-martial.  The immediate commander stated the applicant's actions, behavior, and attitude precluded rehabilitation.  He had demonstrated little desire to return to duty and received multiple counselings by various members of the chain of command.  His record and failure to react constructively to the rehabilitation program indicated he should not be retained in the service.  This was followed by a recommendation of approval by his intermediate commander.

12.  On 16 July 1976, a board of officers convened at Fort Riley, KS, to determine whether the applicant should remain in the service or be administratively separated.  The board recommended his elimination from the service by reason of misconduct with the issuance of an Undesirable Discharge Certificate.

13.  On 26 July 1976, the convening/separation authority approved the report of board proceedings and ordered the applicant's discharge from the Army under the provisions of chapter 13 of Army Regulation 635-200 by reason of misconduct and that he be furnished a Undesirable Discharge Certificate.  The applicant was accordingly discharged on 28 July 1976.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed a total of 1 year, 8 months, and 7 days of creditable active military service with 111 days of lost time.

14.  On 24 August 1979, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

15.  He submitted the following documents:

	a.  a statement, dated 16 April 2010, from a plant manager who describes the applicant as a responsible employee who made a mistake and should have his discharge upgraded;

	b.  an undated statement from his pastor who describes the applicant as a family man with commendable conduct and excellent work ethics.  He recommends his discharge be upgraded; and

	c.  various medical documents, dated in 2009 and 2010, that describe his heart problems as well as his ongoing treatments.

16.  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 outlined the procedures for separating individuals for misconduct.  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.

17.  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.

18.  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 requests that his discharge be upgraded.

2.  The evidence of record shows the applicant was 17 years and 8 months of age at the time of his enlistment, 18 years of age at the time of his first NJP, nearly 19 years of age at the time he was barred from reenlistment, and 19 years and 4 months of age at the time he was court-martialed.  There is no evidence his pattern of misconduct was a result of his age or that he was any less mature of other Soldiers of the same age who successfully completed their terms of service.

3.  The applicant's records reveal a history of misconduct which includes one instance of a court-martial and five instances of NJP.  He was provided with multiple counselings 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.

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

5.  His current medical condition is noted and is regrettable; however, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Based on his record of substandard performance and/or indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to the requested relief.


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)                                         AR20100013468



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ABCMR Record of Proceedings (cont)                                         AR20100013468



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