BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120022539 


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, in effect, an upgrade of his undesirable discharge (UD). 

2.  The applicant states:

* he realized he did not have the ability to injure or kill another human being after enlisting in the infantry 
* he attempted to change occupations and file for conscientious objector status, but both requests were denied
* he felt the only way to avoid killing or injuring another person was to leave the military
* he began to demonstrate a pattern of misconduct and dereliction of duty that resulted in his discharge 
* he was an only child and this created issues for him and his mother
* he settled into a stable life in Texas after his discharge and became a step-father
* he has made a respectable living as a laborer and truck driver
* the period in which he served, his age, and his clean productive life since being discharged should be considered

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 was born in September 1951 and he enlisted in the Regular Army on 6 September 1972.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the following:

   a.  on 26 February 1973, for being absent without leave (AWOL) from on or about 29 January to 21 February 1973;
   
   b.  on 24 August 1973, for being AWOL from on or about 21 to 24 August to 1973;
   
   c.  on 30 August 1973, for disobeying an order;
   
   d.  on 5 September 1973, for missing a movement, failure to go, and being AWOL on 4 September 1973;
   
   e.  on 20 September 1973, for:

*	being AWOL from on or about 7 to 12 September 1973 and from 12 to 14 September 1973
*	breaking restriction on 7 September 1973
*	disobeying an order on 18 September 1973

   f.  on 1 October 1973, for failure to go to his appointed place of duty at the time prescribed.


4.  Special Court-Martial Order Number 4, issued by Headquarters, 2d Brigade, 8th Infantry Division, dated 13 February 1974, shows the applicant was convicted of being AWOL from on or about 3 to 6 November 1973 and breaking restriction on 9 November 1973.  His sentence included confinement for 2 months.

5.  On 5 August 1974, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 13, for unfitness, due to his frequent incidents of a discreditable nature with civil or military authorities.  Further, the applicant's immediate commander stated in his discharge recommendation to the brigade commander that:

* the applicant had been counseled on numerous occasions by his squad leader and platoon sergeant
* the applicant showed a lack of desire to perform and a lack of respect for authority

6.  After having been advised by consulting counsel of the basis for the contemplated separation action, the applicant acknowledged receipt of the notification, waived his rights for consideration by an administrative separation board and a personal appearance before an administrative separation board.  He also elected not to submit statements on his own behalf.  He acknowledged he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws

7.  On 14 August 1974, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unfitness, and directed the issuance of an Undesirable Discharge Certificate.

8.  Accordingly, on 15 August 1974, the applicant was discharged.  His DD Form 214 shows he completed 1 year, 8 months, and 17 days of creditable active military service with 179 days of lost time.

9.  On 28 April 1980, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.




10.  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 a history of misconduct which includes six instances of NJP, spanning throughout his military history, and ranging from AWOL to disobeying an order.  He was provided multiple opportunities for rehabilitation by his chain of command, 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 was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  His character of service was commensurate with his overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

3.  The applicant was 20 years of age at the time of entry on active duty and between 21 and 22 years of age when he repeatedly went AWOL.  There is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their service obligation.  

4.  The applicant's post-service achievements and conduct are noted.  However, his military service was marred with misconduct.  An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel and the under honorable conditions (general) characterization is appropriate for those Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

5.  Based on the foregoing, there is an insufficient evidentiary basis for granting the 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)                                         AR20120022539



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ABCMR Record of Proceedings (cont)                                         AR20120022539



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