IN THE CASE OF:	  

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120011801 


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 general discharge under honorable conditions to a fully honorable discharge.

2.  The applicant states:

	a.  He was young an immature at the time.  He made several decisions that caused the military to feel he was unworthy of an honorable discharge.  The pressure caused him to make certain choices to save his marriage.  Beside the tragic death of his mother and lack of discipline growing up, he had a hard time adjusting to the military.   His home life was not stable, his wife was not mentally stable, and he was in need of help.

	b.  The Army failed to provide counseling to him or his wife or help with their marriage.  He was not given any legal counseling, an offer for reassignment, referral to the chaplain, assistance by other agencies, or a corrective action/improvement plan. 

	c.  He has since grown older and wiser.  He is a totally changed man today.  He has since lived an exemplary life with a new wife and children.  He has been a committed member of his community and he is involved in the church.  

3.  The applicant provides six character reference letters and a criminal history report. 


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 1 October 1952 and he was inducted into the Army of the United States at nearly 20 years of age on 21 August 1972.  

3.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 95B (Military Police).  He was assigned to Savanna Army Depot, IL.  

4.  His records contain a history of being absent without leave (AWOL) as well as a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* 18 September 1973, for being AWOL from 5 to 14 September 1973
* 21 January 1974, for being AWOL from 27 December 1973 to 19 January 1974
* 25 April 1974, for being AWOL from 11 to 23 April 1974
* 19 June 1974, for being AWOL from 27 May to 6 June 1974

5.  His service records contain a memorandum that shows his continued misconduct caused him to not meet the requirements for assignment to nuclear duty position at Savanna Army Depot.  His commander judged his behavior as prejudicial to reliable performance of duty.  Accordingly, on 4 February 1974, a request for reassignment was initiated.  The applicant indicated he desired to be assigned to Fort Jackson, SC.

6.  His service records also show that due to his misconduct, his chain of command determined he no longer met the qualifications for MOS 95B.  Accordingly, reclassification was directed, and, as an exception, he was allowed to reclassify to MOS 11B (Infantryman).
7.  He was ordered reassigned to Fort Polk, LA, for completion of MOS 11B training.  However, he failed to report.  Accordingly, on 27 May 1974, he was reported in an AWOL status.  His status changed to duty on 6 June 1974.

8.  On 24 June 1974, 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:

* His refusal to adhere to the simple requirements of being present for duty
* His demonstrates failure to rehabilitate himself from September 1973 to the present
* He had been counseled but showed he was a poor candidate for rehabilitation

9.  On 11 July 1974, 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 also requested consideration of his case by a board of officers and a personal appearance before a board of officers.  He further elected not to submit a statement on his own behalf.  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

10.  On 15 July 1974, the applicant's senior commander requested the applicant's case be referred to a board of officers for review.  He further ordered waving any further counseling or rehabilitative transfer.   

11.  The complete facts and circumstances of the board of officers, findings, and recommendations as well as the action by the convening/separation authority are not available for review with this case.  However, his records contain:

	a.  Special Orders Number 232, issued by Headquarters, U.S. Army Training Center and Fort Polk, Fort Polk, LA, on 20 August 1974, reducing him to the lowest enlisted grade, effective 5 August 1974, by order of the Commanding General , Fort Polk, LA and by reason of approval of the discharge from the service with an undesirable discharge.

	b.  Special Orders Number 232, issued by Headquarters, U.S. Army Training Center and Fort Polk, Fort Polk, LA, on 20 August 1974, ordering his discharge from the Army effective 21 August 1974 in accordance with chapter 13 of Army Regulation 635-200 by reason of unfitness and with an under other than honorable conditions characterization of service. 

	c.  A duly-constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with an Undesirable Discharge Certificate.  This form also shows he completed 1 year, 10 months, and 8 days of creditable active military service and he had 54 days of lost time under Title 10, U.S. Code, section 972.

12.  He submitted a criminal history printout that shows as of 14 December 2011, there was no record of any criminal history pertaining to him.   He also submitted multiple character reference letters from various individuals including a pastor, friends, church-goers, and coworkers.  The authors focus on the applicant's service to the church, support of community functions, and high character. 

13.  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.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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's records reveal an extensive history of misconduct that included multiple instances of AWOL and NJP.  He was provided counseling and/or multiple opportunities for rehabilitation by his chain of command, including reassignment to Fort Polk, LA, but he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

2.  The evidence of record shows his separation action appears to have been accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  Although the board of officer's findings and recommendations are not available for review with this case, it is presumed 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.  With respect to his arguments:

	a.  The applicant was nearly 20 years of age at the time of his entry on active duty and between 20 and 22 years of age when he repeatedly went AWOL.  However, there is no evidence that his history of AWOL was caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their service.  

	b.  Contrary to his contention that the military failed to rehabilitate him or counsel, the evidence of record shows he was counseled on multiple occasions by his chain of command and was allowed to reclassify (rather than be discharged for failure to meet qualifications for MOS) and reassigned to Fort Polk, LA.  Despite the rehabilitative efforts, he failed to become an effective Soldier.

	c.  The evidence of record shows when he was notified of the separation action, he consulted with legal counsel and he was advised of the bases of the contemplated action to separate him for unfitness as well as the options/rights that were available to him.

	d.  The applicant's successful post-service achievements and the multiple character reference letters he provides were noted.  However, they are not sufficiently mitigating the change the character of service he received at the time. 

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 a general or an honorable 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)                                         AR20120011801





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ABCMR Record of Proceedings (cont)                                         AR20120011801



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