BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120012054


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, from an under other than honorable conditions discharge to an under honorable conditions (general) discharge.

2.  The applicant states at the time of his discharge he was just being a young person, having fun.  He states he was not grown up enough to take on the responsibility of being in the U.S. Army; he was very immature at that time.  He concludes by stating he has never been to jail and he has a perfect record since his discharge.

3.  The applicant provided no additional evidence in support of his request.

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 record shows he was born on 9 May 1959 and enlisted in the Regular Army at 17 years and 9 months of age on 24 February 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  His record shows he received developmental counseling on numerous occasions between 16 November 1977 and 3 October 1978, for instances of dereliction of duty, failure to maintain an appropriate appearance, failure to be at his appointed place of duty at the appropriate time, failure to follow instructions and orders, and for displaying disrespect to noncommissioned officers (NCO).

4.  He was reported by his unit as absent without leave (AWOL), from on or about 27 February 1978 through on or about 13 March 1978, a period of 15 days.

5.  On 27 April 1978, his immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against him, recommending he be barred from reenlistment due to unsatisfactory conduct.  Specifically, his commander noted he was pending trial by court-martial for being AWOL for 15 days, for being in possession of marijuana, and for receiving a letter of reprimand for operating his motorcycle in an unsafe manner.  On 17 May 1978, his bar to reenlistment was approved.

6.  On 2 June 1978, before a summary court-martial at U.S. Naval Air Station, Key West, FL, he was convicted of a single specification of Charge I, for violating Article 86 of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 27 February 1978 through on or about 14 March 1978. 

7.  Records show he received nonjudicial punishment under the provisions of Article 15 of the UCMJ on 2 separate occasions for the offenses indicated:

	a.  on 15 August 1978, for violating Article 91 of the UCMJ; specifically, for disrespecting a senior NCO, on or about 7 August 1978; and

	b.  on 26 September 1978, for violating Article 86 of the UCMJ; specifically, for failing to go, at the prescribed time, to his appointed place of duty, on
2 separate occasions (19 September and 22 September 1978). 

8.  On 5 October 1978, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for acts or patterns of misconduct.

9.  On 5 October 1978, he acknowledged he had been advised by counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights.  He chose to submit statements in his own behalf.  On 11 October 1978, in a statement to his immediate commander concerning his discharge from the Army under the provisions of Army Regulation 635-200, chapter 14, the applicant requested discharge from the Army, citing his poor attitude and inability to conform to military standards.

10.  On 6 November 1978, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, and directed he receive an under other than honorable conditions discharge.  

11.  On 9 November 1978, he was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged for misconduct.  He completed a total of 1 year, 8 months, and 1 day of creditable active service.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b.  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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would 

have jeopardized his rights.  The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  Although the applicant was 17 years and 9 months of age at the time he enlisted in the Regular Army and 18 years of age at the time he committed his misconduct, there is no evidence he was any less mature than other Soldiers of the same age who successfully completed their term of service. 

3.  Based on his record of indiscipline, including instances of NJP, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20120012054



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