IN THE CASE OF: 

		BOARD DATE:	      6 November 2012

		DOCKET NUMBER:  AR20120007566 


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 undesirable discharge.

2.  The applicant states:

* He was very young at the time he went into the Army
* He made a mistake
* He had a fight with an older sergeant when he was in advanced individual training (AIT) that scared him
* He would like his discharge upgraded so he may obtain good employment and receive medical coverage at the Department of Veterans Affairs (DVA)

3.  The applicant provides no documentary 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 23 November 1955.  He enlisted in the Regular Amy on 29 December 1972 for a period of 3 years.  He completed his training and was awarded military occupational specialty 64C (motor transport operator).

3.  Between 30 March 1973 and 25 May 1973, nonjudicial punishment (NJP) was imposed against the applicant on four occasions for:

* absenting himself from his appointed place of duty
* being absent without leave (AWOL) from 17 April 1973 to 2 May 1973
* failure to repair and being drunk and disorderly
* being AWOL from 17 May 1973 to 22 May 1973 

4.  On 29 May 1973, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.   

5.  On 21 June 1973, after consulting with counsel and being advised of his recommended separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

6.  On 4 June 1973, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander cited:

* the applicant had a poor discipline record
* he received four Article 15s since his assignment to the unit
* he appeared to be unresponsive to constructive counseling
* he lacked the will or the sense of responsibility necessary to be a constructive member of the military society

7.  On 26 June 1973, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.  

8.  He was discharged on 18 July 1973 with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served a total of 5 months and 22 days of total active service with 28 days of lost time.
9.  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.     

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  

11.  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.

12.  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.  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 contends he was very young when he enlisted.  However, age is not a mitigating factor.  Although he was 17 years old when he enlisted, he completed his training.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  

2.  He wants better job opportunities.  Discharges are not upgraded for the purpose of enhancing employment opportunities.

3.  He needs medical coverage at the DVA.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

4.  His brief record of service included four NJPs and 28 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to an honorable or a general discharge.

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

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

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120007566





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ABCMR Record of Proceedings (cont)                                         AR20120007566



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