BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120005311 


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 discharge under other than honorable conditions.

2.  The applicant states he was 17 years old and he was discharged from the stockade.  A sergeant asked him "if [he] wanted out and [he] took it."  He states he was absent without leave (AWOL) – he was 16 years old.

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's records show he was born on 14 April 1949 and enlisted in the Regular Army at 17 years of age on 28 April 1966.  He completed training and was awarded military occupational specialty 76A (Supplyman).  He was assigned to Fort Hood, TX.

3.  His record shows he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on:

* 5 November 1966, for being AWOL from 3 to 5 November 1966
* 13 March 1967, for disobeying an order issued by his commanding officer
* 13 April 1967, for being AWOL on 12 April 1967
* 13 June 1967, for willfully destroying government property
* 21 July 1967, for disobeying a lawful order

4.  On 29 September 1967, consistent with his pleas, he was convicted by a special court-martial of one specification of AWOL from 23 August 1967 to 14 September 1967.  The court sentenced him to confinement at hard labor for 3 months and a forfeiture of $50.00 pay per month for 3 months.  The convening authority approved the sentence on 6 October 1967 but suspended the confinement for 3 months.

5.  On 31 October 1967, consistent with his pleas, he was again convicted by a special court-martial of one specification of AWOL from 2 to 20 October 1967.  The court sentenced him to confinement at hard labor for 1 month and a forfeiture of $64.00 pay per month for 1 month.  The convening authority approved the sentence on the same date.

6.  On 30 October 1967, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.  He recommended an Undesirable Discharge Certificate.

7.  On 30 October 1967, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights available to him.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He further acknowledged he could be ineligible for many or all benefits as a veteran under both Federal and State laws in the event an undesirable discharge was issued to him.  He waived consideration of his case by a board of officers, he waived a personal appearance before a board of officers, and he declined to make a statement in his own behalf.

8.  Subsequent to this acknowledgement, the immediate commander initiated separation action against him under the provisions of Army Regulation 635-212 for unfitness.  The immediate commander recommended an Undesirable Discharge Certificate.  The immediate commander stated the applicant's mental status evaluation report showed no mental condition that warranted discharge through medical channels.

9.  On 21 November 1967, his senior commander recommended approval of the separation with the issuance of an Undesirable Discharge Certificate.

10.  On 6 December 1967, consistent with the chain of command's recommendations, the separation authority approved his discharge for unfitness under the provisions of Army Regulation 635-212 and directed that he be issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 14 December 1967.

11.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions under the provisions of Army Regulation 635-212 by reason of unfitness.  He completed 1 year, 4 months, and 21 days of creditable active service and accrued lost time from 3 to 4 November 1966, 23 August to 13 September 1967, and 2 October to 3 December 1967.

12.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation 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:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

14.  Army Regulation 635-200 (Personnel Separations) 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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant displayed habits and traits of character manifested by frequent incidents of a discreditable nature with military authorities as confirmed by his continuous AWOL, nonjudicial punishment, and court-martial convictions.  Accordingly, his chain of command initiated separation action against him.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  The evidence shows the applicant was 17 years of age at the time of his enlistment and 18 years of age at the time of his misconduct.  However, there is no evidence that he was any less mature than other Soldiers of the same or similar age who successfully completed their terms of service or that his misconduct was caused by his age.

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.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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 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)                                         AR20120005311



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ABCMR Record of Proceedings (cont)                                         AR20120005311



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