IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100018057 


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 not aware of the consequences of signing the discharge documents because at the time he had a family emergency (death in the family). 

3.  The applicant did not provide any additional 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 record shows he was born on 4 January 1954.  On 28 August 1972, he enlisted in the Regular Army for 2 years.  At the time he was 18 years and 9 months of age.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (light weapons infantryman).  The highest rank/grade he attained during his military service was private (PV2)/E2.

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 15 November 1972, for being absent from his unit on 11 November 1972.

4.  On 15 June 1973, he again received NJP under the provisions of Article 15, UCMJ, for going from his appointed place of duty on June 1973 and for behaving with disrespect to a superior commissioned officer on 8 June 1973.

5.  On 1 October 1973, he received NJP under the provisions of Article 15, UCMJ, for orally insulting a government employee, wrongfully using reproachful words to a person serving with the Army, wrongfully and unlawfully endeavoring to impede an investigation conducted by a Military Police officer, disobeying the order of a superior commissioned officer, and disobeying a lawful command of his superior commissioned officer.

6.  On 30 January 1974, he was arraigned and tried by a special court-martial for:

* failing to go at the time prescribed to his appointed place of duty on 13, 15, 16, 21, and 24 October 1973
* 2 specifications of striking a noncommissioned officer (NCO) on 16 November 1973
* communicating a threat to injure an NCO on 16 November 1973

7.  He pled guilty to all charges and specifications.  Sentence was adjudged on 30 January 1974.  He was sentenced to confinement at hard labor for 160 days, reduction to the lowest enlisted grade, and forfeiture of $100.00 per month for
5 months.

8.  On 4 February 1974, by Special Court-Martial Order Number 9, issued by Headquarters, 1st Armored Division, the convening authority approved the sentence but suspended the adjudged confinement in excess of 3 months for the period of 6 months.

9.  On 1 May 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 Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, due to unfitness.  Specifically, the immediate commander cited the applicant's frequent incidents of a discreditable nature.  He had been counseled on numerous occasions to no avail and he was sent to the Brigade for the purpose of receiving correctional training and treatment necessary to return to duty as a well-trained Soldier with improved attitude and motivation.  He demonstrated little desire to return to duty.  All attempts to rehabilitate him were met with negative results and he did not meet the criteria for further rehabilitation attempts.

10.  On 1 May 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 and a personal appearance before an administrative separation board.  He requested representative by counsel.  He elected not to submit a statement in his own behalf.  

11.  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.

12.  On 1 May 1974, his immediate commander initiated elimination action against him under the provisions of Army Regulation 635-200, chapter 13, due to unfitness.  The immediate commander requested a waiver of any further requirements for counseling or rehabilitative transfer because prior attempts had failed.  On the same date, his senior commander recommended approval of the request for discharge due to the applicant's unfitness.

13.  On 16 May 1974, an administrative separation board convened at Fort Riley, KS, 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.

14.  On 16 May 1974, the convening/separation authority approved the board's findings and recommendations and ordered that the applicant be issued an Undesirable Discharge Certificate.
15.  Accordingly, the applicant was discharged on 10 June 1974.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, with an Undesirable Discharge Certificate.  He had completed 1 year, 4 months, and
21 days of creditable active military service with 142 days of time lost.

16.  On 2 April 1982, after careful consideration of his military records and all other available evidence, the Army Discharge Review Board (ADRB) determined that he was properly discharged.  As a result, the ADRB denied his petition for an upgrade of his discharge.

17.  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.

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 available evidence shows the applicant was 18 years and 9 months of age at the time of his enlistment and 19 years of age at the time of his first 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.

2.  His record reveals an extensive history of misconduct that included four instances of NJP, a special court-martial, and multiple instances of being absent 

from his unit without authority.  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.  

3.  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.  

4.  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)                                         AR20100018057



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ABCMR Record of Proceedings (cont)                                         AR20100018057



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