BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110023618 


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 under other than honorable conditions discharge to a general, under honorable conditions or a fully honorable discharge.

2.  The applicant states he was young at the time and did nothing wrong.  He just wanted to go home.  An upgrade would entitle him to some benefits. 

3.  The applicant provides no 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 was born on 29 December 1956 and enlisted in the Regular Army at 17 years and 2 months of age on 27 March 1974.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 76Y (Unit Supply Specialist).  He was assigned to Fort Riley, KS for duty.

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 10 March 1975, being absent without leave (AWOL) from 18 February to 5 March 1975 and wrongfully possessing marijuana on 29 January 1975
* 7 May 1975, being AWOL from 1 to 8 April 1975 and disobeying a lawful order on 23 April 1975

4.  On 2 May 1975, the applicant's immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to unfitness.  The immediate commander requested a waiver of any further requirements for counseling or rehabilitative transfer because prior attempts had failed.  Specifically, the immediate commander cited the applicant's:

* Frequent acts of discreditable nature
* AWOL and possession of marijuana
* Below average attitude

5.  On 2 May 1975, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for unfitness.  The applicant waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He further elected to submit a statement on his own behalf.  In his statement, he stated:

* his performance in the Army did  not merit a discharge
* the marijuana that was found in his possession was only a residue of a pipe
* he was not a drug abuser
* he was awaiting a court-martial charge for AWOL
* he believed he was being mistreated

6.  In conjunction with his counseling, he acknowledged that: 

* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he understood that 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 he may encounter substantial prejudice in civilian life

7.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under the provisions of chapter 13 of Army Regulation 635-200.  

8. On 6 May 1975, his intermediate commander recommended approval and a waiver of the rehabilitation efforts.

9.  On 2 June 1975, the separation authority approved the applicant's discharge under the provisions of chapter 13 of Army Regulation 635-200 and ordered the issuance of an Undesirable Discharge Certificate.  The applicant was discharged accordingly on 11 June 1975.

10.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with a an under other than honorable conditions character of service and he was issued an Undesirable Discharge Certificate.  He completed 1 year, 1 month, and 23 days creditable active military service and he had 22 days of lost time.

11.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitation.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided 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 an honorable or a general discharge.

13.  Army Regulation 635-200, 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.
14.  Paragraph 3-7b of Army Regulation 635-200 states 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 applicant's records reveal a history of misconduct that included two instances of NJP for AWOL and drugs.  He was provided counseling and/or multiple 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.

2.  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.

3.  Although the applicant was 17 years and 2 months of age at the time of his enlistment, he was 18 years of age when he went AWOL the first time and used marijuana.  Nevertheless, there is no evidence in his records that shows his misconduct was caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their term of service. 

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.  Therefore, he is not entitled to the 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)                                         AR20110023618



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ABCMR Record of Proceedings (cont)                                         AR20110023618



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