IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110002015 


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 his undesirable discharge (UD) be upgraded to an honorable discharge.

2.  He states that the discharge he received was probably appropriate at the time.  However, it currently imposes unjust difficulty in his efforts to obtain employment.  He enlisted at age 17 and he was very immature.  The "theft" offense considered at his discharge board involved the movement of a piece of office equipment from one Army office to another without requisition.  Since then, as described in some detail in the accompanying letters of support, he has permanently jeopardized his own safety and that of his family to provide an extraordinary public service.  This application was encouraged by public servants who understand what he has done for his country.

3.  He also states that he served undercover in a motorcycle gang and helped the Federal Bureau of Investigation; Alcohol, Tobacco, and Firearms; Bureau of Narcotics Enforcement, California; and local agents collect evidence resulting in the imprisonment of 30 gang members on charges of drugs, weapons, explosives, and conspiracy to commit murder.

4.  He provides five 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 record shows he enlisted in the Regular Army (RA) on 22 June 1971, at age 17, for 3 years, in pay grade E-1.  He completed the training requirements and he was awarded military occupational specialty 11B, Light Weapons Infantryman.  He was advanced to pay grade E-3 on 29 October 1971.

3.  He was honorably discharged from active duty on 10 April 1972 for the purpose of immediate reenlistment.  He reenlisted in the RA on 11 April 1972 for 4 years.  He was 17 years and 11 months of age when he reenlisted.

4.  He accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on:

* 11 August 1972 for being absent without leave (AWOL) from 10 July to 6 August 1972
* 14 September 1972 for breaking restriction on 27 August 1972

5.  On 30 April 1973, he was convicted by a special court-martial of two specifications of wrongful appropriation of U.S. Government property on 2 and 
14 January 1973.  He was sentenced to confinement at hard labor for 70 days, a forfeiture of $150.00 pay for 3 months, and reduction to pay grade E-1. 

6.  On 31 May 1973, the convening authority approved the sentence and ordered it duly executed.  He was reduced to pay grade E-1 on 31 May 1973.

7.  On 12 June 1973, the unexecuted portion of the approved sentence to a forfeiture of $150.00 pay for 3 months was suspended until 1 August 1973, at which time, unless sooner vacated the suspended portion of the sentence would be remitted without further action. 

8.  A DD Form 458 (Charge Sheet) was prepared by the Commander, Company A, U.S. Army Personnel Control Facility on 8 November 1973.  The applicant was charged with being AWOL from 9 October to 5 November 1973.

9.  A Report of Psychiatric Evaluation, dated 14 January 1974, shows he was diagnosed with a character behavior disorder manifested as an explosive personality.  The examining psychiatrist stated the applicant was referred to mental hygiene due to a pending discharge.  He determined to be alert, well-oriented, and cooperative throughout the interview.  He reported being slightly depressed since being in the Army; he was frequently unable to sleep and he experienced a lack of appetite.  The examining psychiatrist stated the applicant had apparently not adopted the necessary self-restraints that were handy when leading an adult life.  He continued to act out his emotional outbursts with little or no regard for consequences.  The examining psychiatrist further stated that there was no evidence of any serious psychiatric abnormality.  Therefore, he recommended that the applicant be separated under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Separations).

10.  All of the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contain a copy of his DD Form 214 (Report of Separation from Active Duty) which shows he was discharged on 12 March 1974 under the provisions of Army Regulation 635-200, paragraph 13-5a(4), due to unfitness, an established pattern of shirking.  He was issued an Undesirable Discharge Certificate.  He was also credited with 2 years, 5 months, and 9 days of total active service and 102 days of time lost.

11.  His records are absent any evidence of awards for meritorious achievement or performance during his periods of service.

12.  He provided copies of five character reference letters attesting to his assistance in the public disclosure of a motorcycle gang's appalling criminality and the incarceration of many very dangerous individuals which provided tremendous benefit to the public at a huge personal cost to the applicant.  

13.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the policy and prescribed the procedures for administrative separation of enlisted personnel.  Chapter 13 applied to separation for unfitness and unsuitability.  Paragraph 
13-5a(4) provided for the separation of individuals for unfitness for an established pattern of shirking.  When separation for unfitness was warranted, a UD was issued by the separation authority.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

15.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he made some mistakes due to his youth is without merit.  He was age 17 when he initially enlisted in the RA and he served without incident during this initial period of service.  He was 17 years and 11 months of age when he reenlisted and he was age 18 when he first went AWOL.  A psychiatric evaluation found that he had apparently not adopted the necessary self-restraints that were handy for leading an adult life.  Nevertheless, there is no evidence of any significant problems that contributed to or prevented him from being able to successfully complete his military service obligation.  

2.  The evidence of record shows he was punished under Article 15 (twice) and convicted by a special court-martial.  His record is void of the facts and circumstances which led to his involuntary discharge.  However, his record contains a DD Form 214 that shows he was discharged on 12 March 1974 under the provisions of Army Regulation 635-200, paragraph 13-5a(4).

3.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no evidence that would indicate the contrary or show his discharge was unjust.  Further, it is presumed that his discharge accurately reflects his overall record of service.

4.  In view of the foregoing, there is no basis for granting his 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)                                         AR20110002015



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ABCMR Record of Proceedings (cont)                                         AR20110002015


   
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