IN THE CASE OF:	  

		BOARD DATE:	    1 September 2011

		DOCKET NUMBER:  AR20110003931 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states he was 17 years old while serving in Korea and he was too young and immature.  He states Korea was not a suitable environment for a youngster to become an adult and he made some wrong choices.

3.  The applicant provides:

* a self-authored statement
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* his discharge orders

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 enlisted in the Regular Army on 19 January 1971 for 3 years at the age of 17 years, 1 month, and 25 days.  He completed training and he was awarded military occupational specialty (MOS) 36K (field wireman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3; however, he held the rank/grade of private (PVT)/E-1 at the time of separation.

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

	a.  31 August 1971 for violating a general regulation by not returning on time to his unit on 28 August 1971;

	b.  18 September 1971 for being absent without leave (AWOL) for the period 11 September 1971 to 14 September 1971; and

	c.  4 October 1971 for breaking restriction on 28 and 30 September 1971.

4.  The applicant was counseled by his chain of command on numerous occasions for his unsatisfactory attitude and duty performance.

5.  On 1 October 1971, the applicant's unit commander notified him that he was recommending his discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), by reason of unsuitability.

6.  On 6 October 1971, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects, of the rights available to him, and of the effect of a waiver of those rights.  Subsequent to receiving legal counsel, the applicant completed a statement in which he waived his right to consideration of his case by a board of officers, a personal appearance before a board of officers, and representation by counsel.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a general discharge.

7.  On 13 October 1971, the separation authority directed the applicant’s discharge under the provisions of Army Regulation 635-212, by reason of unsuitability with a general discharge.  On 20 October 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed
9 months and 2 days of total active service.  

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  It provided for discharge due to unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

10.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade his general discharge to an honorable discharge was carefully considered and determined to be without merit.

2.  The applicant was 17 years and 9 months of age at the time he committed  his first offense.  There is no evidence which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

3.  The available evidence shows the applicant’s separation processing was accomplished 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.  

4.  The applicant's record reveals a disciplinary history which includes his acceptance of NJP on three separation occasions.  This record of misconduct clearly diminished the overall quality of his service below that warranting the issuance of an honorable discharge.  Therefore, it would not be appropriate to upgrade his 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)                                         AR20110003931



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ABCMR Record of Proceedings (cont)                                         AR20110003931



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