IN THE CASE OF:	  

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110016562 


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 that his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states he was young, he wanted to see his family, and he did not follow protocol.  After coming back from overseas he needed some time off before returning to duty.  He took an unauthorized leave of absence.  He did not understand the correct way of doing things.  He now needs medical benefits and a pension.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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.  On 31 July 1974, at age 18, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 27 November 1974, the applicant departed Fort Polk, Louisiana, for duty in Panama.

4.  On 11 February 1976, the applicant was advanced to specialist four, pay grade E-4.

5.  On 14 September 1976, the applicant departed Panama on orders for duty at Fort Hood, Texas.

6.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows the following duty status:

	a.  3 to 16 December 1976:  Absent without leave (AWOL);

	b.  17 to 19 December 1976:  Confinement by civilian authorities;

	c.  20 to 22 December 1976:  Military confinement;

	d.  23 December 1976 to 6 January 1977:  AWOL;

	e.  7 to 12 January 1977:  Confinement;

	f.  1 to 9 March 1977:  Confinement; and

	g.  22 March to 28 April 1977:  Confinement.

7.  Special Court-Martial Orders Number 16, Fort Bragg, North Carolina, dated 
4 May 1977, show the applicant was convicted of absenting himself from his place of duty without authority and of failing to go to his appointed place of duty.

8.  On 13 May 1977, the commander recommended the applicant be discharged from the service for misconduct under the provisions of chapter 13, Army Regulation 635-200, due to frequent incidents of a discreditable nature.

	a.  The commander cited the applicant's court-martial action, his subsequent behavior, attitude, and that he demonstrated that he had little desire for returning to duty.

	b.  The commander deemed a discharge for unsuitability was not appropriate because his behavior was not due to any inability to satisfactorily perform within the meaning of unsuitability.

	c.  The commander stated the applicant had been sent to the Retraining Brigade for the purpose of correctional training and treatment necessary to return him to duty as a well-trained Soldier with an improved attitude and motivation.  However, the applicant's actions precluded accomplishment of these goals.

	d.  The commander further recommended a waiver of any further counseling or rehabilitation.

9.  On 13 May 1977, the applicant consulted with counsel and elected to waive counsel and to not make a statement in his own behalf.

10.  On 19 May 1977, the appropriate authority approved the recommendation and directed that he be issued DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).

11.  Accordingly, he was discharged under other than honorable conditions on 
20 May 1977.  He had completed 2 years, 6 months, and 22 days of creditable active service and he had accrued 88 days of lost time due to being AWOL and in confinement.

12.  On 31 July 1977, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

13.  Army Regulation 635-200 (Personnel Separations):

	a.  Chapter 13, applied to separation for unfitness and unsuitability.  At that time, paragraph 13 provided for the separation of individuals for unfitness whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unfitness was warranted an Under Other Than Honorable Conditions Discharge Certificate was normally issued.

	b.  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.
	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to honorable because he was young and wanted to see his family.  He now needs medical benefits and a pension.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  Even though the applicant was age
18 when he entered the military he satisfactory completed training, and completed an overseas tour of duty in Panama before any negative incidents were documented against him.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

6.  The applicant's desire to obtain veterans medical benefits is not a valid justification to upgrade his discharge.

7.  In view of the foregoing, the applicant's request should be denied.









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)                                         AR20110016562



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ABCMR Record of Proceedings (cont)                                         AR20110016562



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