IN THE CASE OF:	  

		BOARD DATE:	    27 November 2012

		DOCKET NUMBER:  AR20120009187 


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.

2.  The applicant states:

* His company commander misrepresented the paper he (the applicant) was told to sign
* He was young at the time; he did not understand the consequences of his actions
* He was abused, misused, and made fun off during his military service
* If he had understood the consequences of his discharge, he would have acted differently at the time 
* His company commander was prejudiced against him and took advantage of his rank and power
* He was tricked into signing papers with the belief he was being transferred to a different unit

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Undesirable Discharge Certificate
* Multiple Department of Veterans Affairs (VA) forms
* Multiple VA statements in support of claim
.

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 15 April 1956 and enlisted in the Regular Army at 18 years of age on 30 September 1974.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 63F (Recovery Specialist).  

3.  The highest rank/grade he attained during his military service was private first class/E-3.  He was assigned to the 707th Maintenance Battalion and then the 127th Signal Battalion, both at Fort Ord, CA.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* 10 October 1975, failing to go to his appointed place of duty and remaining in an absent without leave status (AWOL) on 6 October 1975
* 22 December 1975, being AWOL on 22 December 1975
* 23 January 1976, being AWOL from 8 to 14 January 1976
* 9 February 1976, failing to go to his appointed place of duty
* 19 February 1976, failing to go to his appointed place of duty
* 27 February 1976, wrongfully falsifying/altering a sick call slip

5.  The applicant was frequently counseled by members of his chain of command for various infractions, most notably:

* his failure to uphold his responsibility to support his dependents on multiple occasions
* poor attitude toward the military
* choosing not to comply with the requirement of the military 
* unsatisfactory conduct and performance
6.  On 1 March 1976, the applicant’s immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unfitness.  Specifically, the immediate commander cited his frequent incidents of a discreditable nature with civil or military authorities. 

7.  On 1 March 1976, the applicant acknowledged receipt of the notification of his pending separation action.  He was advised by counsel of the basis for the contemplated action to separate him for unsuitability under the provisions of Army Regulation 635-200.  He further waived consideration of his case by a board of officers, personal appearance before a board of officers, and elected not to submit a statement.  The applicant indicated that:

* He made the choices freely and without threats or coercion or without promises of any kind
* he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was 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 may encounter substantial prejudice in civilian life
* he expressly waived his right to the 72 hours waiting period between notice of rights and signing his statement of separation counseling

8.  Subsequent to this acknowledgement, the applicant’s immediate commander initiated elimination action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness.  

9.  On 4 and 5 March 1976, the applicant's intermediate and senior commanders recommended approval of the applicant's discharge and a waiver of any rehabilitative efforts.

10.  On 18 March 1976, the separation authority approved the recommendation to discharge the applicant and directed he be discharged under the provisions of paragraph 13-5 of Army Regulation 635-200 by reason of unfitness and that he be furnished an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 31 March 1976.

11.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with a character of service as under other than honorable conditions and was issued an Undesirable Discharge Certificate.  This form further shows he completed 1 year, 5 months, and 26 days of creditable active military service and had 25 days of lost time.

12.  There is no indication 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 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unfitness.  It provided, in pertinent part, 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 a general or an honorable discharge.

14.  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 (emphasis added), 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 applicant contends his undesirable discharge should be upgraded.

2.  The applicant's records reveal a history of misconduct which includes six instances of NJP, frequent counseling, and multiple instances of AWOL.  He was provided with multiple counseling and/or opportunities for rehabilitation by his chain of command but failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.  

3.  The evidence of record shows the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were 

conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

4.  With respect to his arguments:

	a.  Nothing in his records supports his contention that his company commander misrepresented the paperwork he was told to sign.  In fact, he was counseled by a military counsel and fully acknowledged he understood the consequences of his actions.  

	b.  The applicant was 18 years of age at the time of his enlistment and 19 years of age when he started his pattern of misconduct.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

	c.  Contrary to his contention that he was tricked into signing papers with the belief he was being transferred to a different unit, the evidence of record clearly shows he expressly waived his right to the 72 hours waiting period between notice of rights and signing his statement of separation counseling.  Additionally, he clearly indicated that he made the choices freely and without threats or coercion or without promises of any kind.

5.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, 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 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)                                         AR20120009187





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ABCMR Record of Proceedings (cont)                                         AR20120009187



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