IN THE CASE OF:	  

		BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120013158 


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, in effect, he was young and immature and thought he knew everything, but did not know anything.  He has had a heart attack, a stent, nine strokes, four seizures, and he is a diabetic.  He lost his business and home and he currently lives in a travel trailer.  He would like to better his life and get the medical help he needs.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 enlisted in the Regular Army on 4 June 1973 at the age of 
17 years, 4 months and 26 days.  He completed training and he was awarded military occupational specialty 11C (infantry indirect fire crewman).

3.  On 29 January 1974, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 30 to 31 December 1973 and for being AWOL from 2 to 
4 January 1974.

4.  His DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost) he was:

	a.  AWOL during the period:

* 31 January to 8 February 1974
* 10 to 26 February 1974

	b.  imprisoned from 28 February to 23 May 1974

5.  His DA Form 20B (Record of Court-Martial Conviction) shows he was tried before a special court-martial for:

* AWOL from 31 January 1974 to 9 February 1974
* AWOL from 10 to 27 February 1974
* willfully disobeying a lawful command on 23 January 1974
* willfully disobeying a lawful command on 25 January 1974

6.  His record contains a résumé detailing his attitude, conduct, performance, and discreditable acts during the period 8 April to 24 May 1974.  It shows, in addition to his special court-martial, he failed inspection eight times, he was identified as a manipulator, he disobeyed lawful orders, and he stated on two occasions he wanted to be discharged.

7.  On an unknown date, the applicant's commander notified him 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, for unfitness.  Specifically, the commander cited an established pattern of shirking.

8.  On 31 May 1974, the applicant consulted with counsel, who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.

9.  After consulting with counsel, he elected not to submit statements in his own behalf and he indicated he desired to seek legal counsel concerning the separation action.  He acknowledged he could expect to encounter substantial prejudice in civilian life if an undesirable discharge under conditions other than honorable were to be issued to him.

10.  On 4 June 1974, the separation authority directed his discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the applicant be issued an Undesirable Discharge Certificate.  On 6 June 1974, he was discharged accordingly.

11.  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.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 for an established pattern of shirking.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

	b.  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.

	c.  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 requests an upgrade of his discharge.

2.  His record shows he was 17 years, 4 months, and 26 days of age at the time of his enlistment and 17 years, 11 months, and 22 days of age at the time of his first offense.  He contends he was young and immature; however, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  His record reveals a history of misconduct that includes a conviction by special court-martial, one instance of NJP, frequent counseling, and several instances of AWOL.  He was provided with multiple counseling and/or opportunities for rehabilitation by his chain of command; however, he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

4.  The evidence of record shows his 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.

5.  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 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)                                         AR20120013158



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ABCMR Record of Proceedings (cont)                                         AR20120013158



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