IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100017345 


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 undesirable discharge. 

2.  The applicant states he was young at the time.  He wanted to be all he could be but he was misunderstood.  He was accused of being disrespectful to his commanding officer.  He was held back and he did not receive rank.  He has recognized his mistakes and he has been a good citizen.  He states he has completed college with a master's degree.  He loved the Army and really wanted to do something for his country.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and three character reference letters.

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 25 July 1954 and he enlisted in the Regular Army on 4 October 1971 at the age of 17 years and 2 months.  He was trained in and awarded military occupational specialty 64C (Motor Transport Operator).  

3.  His records also show he completed 16 months of foreign service in Germany and he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  His records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* On 6 February 1973, for dereliction of duties and being disrespectful to his commanding officer
* On 20 March 1973, for failing to obey a lawful order

5.  On 19 April 1973, he was convicted by a summary court-martial of one specification of failing to go at the time prescribed to his appointed place of duty. The court sentenced him to a forfeiture of pay and a suspended reduction to private (PV1)/E-1.  The convening authority approved the sentence on 8 May 1973.

6.  On 22 May 1973, he was again convicted by a summary court-martial of one specification each of disobeying a lawful order, disrespecting a commissioned officer, and failing to go at the time prescribed to his appointed place of duty.  The court sentenced him to a forfeiture of pay, a reduction to PV1/E-1, and restriction.  The convening authority approved the sentence on 8 June 1973.

7.  On 22 May 1973, the applicant’s immediate commander notified him of his intent to initiate action to eliminate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
chapter 13, by reason of unfitness.  Specifically, the immediate commander cited his frequent convictions and NJP. 

8.  The applicant acknowledged receipt of the notification of his pending separation action and he was subsequently advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-200, chapter 13.  He further waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also 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, under honorable conditions discharge was issued to him.  He further 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.

9.  On 21 May 1973, the applicant’s immediate commander initiated elimination action against the applicant under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness.

10.  On 30 May 1973, his intermediate commander recommended approval of this discharge and indicated the applicant's conduct and efficiency did not merit the applicant's retention in the Army.  He was given multiple opportunities to redeem himself but he did not desire to serve honorably.  

11.  On 11 July 1973, his senior commander recommended approval and indicated the applicant showed no desire to accept military standards of conduct and efficiency.  He was a disruptive influence on other Soldiers in the unit and his presence created serious morale problems.  His continued service on active duty would not be in the best interest of the Army. 

12.  On 24 July 1973, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 30 July 1973.

13.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, with a character of service of under other than honorable conditions.  This form further shows he completed 1 year, 9 months, and 27 days of total active service.

14.  On 30 July 1980, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

15.  He submitted the following documents:

	a.  A letter, dated 3 August 2010, from a pastor who supports the applicant's request for an upgrade.

	b.  An undated statement from a friend who describes the applicant as a reliable individual.

	c.  A letter of recommendation, dated 20 December 1991, from a professor who describes the applicant's volunteer efforts as well as his tactful and caring attitude. 

16.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 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.

17.  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 evidence of record shows the applicant displayed a pattern of frequent incidents of a discreditable nature with military authorities as evidenced by his two instances of NJP and two court-martial convictions.  Accordingly, his immediate commander initiated separation action against him for unfitness.

2.  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.

3.  The evidence of record shows that the applicant was 17 years of age at the time of his enlistment and 19 years of age at the time he was convicted by his first court-martial.  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 he has not provided sufficient evidence showing that his acts of misconduct were the result of his age.
4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

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)                                         AR20100017345



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ABCMR Record of Proceedings (cont)                                         AR20100017345



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