IN THE CASE OF:	  

		BOARD DATE:  19 September 2013

		DOCKET NUMBER:  AR20130000414 


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 undesirable discharge (UD) to an honorable discharge.  

2.  The applicant states:

* he was young when he enlisted in the Army
* during basic training he was signed out on a legitimate pass by the clerk but the sign out sheet disappeared
* when he returned, he was told the company commander was "out to get him" because he did not like him
* prior to discharge he was told the company commander was discharged for behavior unbecoming an officer
* looking back he was too young to be in the service and much in need of counseling
* his mental health evaluation shows he was depressed and used poor judgment
* he was treated for back injuries after falling off a truck

3.  The applicant provides:

* a self-authored statement
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* six pages of his Standard Form (SF) 89 (Report of Medical History) and allied documents
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 on 26 August 1949 and enlisted in the Regular Army on 1 December 1966 at the age of 17 years, 3 months, and 5 days.  

3.  He submitted SFs 89:

   a.  dated 30 November 1966, wherein he indicated he suffered from depression or excessive worry and he frequently had trouble sleeping.  He was cleared for enlistment.

   b.  undated, wherein the physician indicated the applicant showed normal intelligence with traits of poor judgment.  He was cleared for separation.  It does not indicate he sustained an injury while serving in an active status.

4.  The applicant's record includes a disciplinary history which shows his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:

* six occasions for failure to go to his appointed place of duty on 3 and 
11 April 1967, 25 November 1967, 2 January 1968, and 7 and 13 July 1969
* without proper authority being absent without leave (AWOL) from his unit from 2 to 7 July 1969 

5.  The applicant's record contains a copy of:

   a.  Headquarters, Special Processing Battalion (Provisional), Special Court-Martial (SPCM) Order Number 609, dated 12 August 1968, which shows he pled guilty and was found guilty of being AWOL from 18 March to 3 April 1968 and 
13 April to 13 July 1968.
   b.  Headquarters, 46th General Support Group, SPCM Order Number 12, dated 7 March 1969, which shows he pled guilty and was found guilty of being AWOL from 21 to 28 January 1969. 

   
   c.  Headquarters, 100th Supply and Service Battalion, SPCM Order Number 20, dated 18 August 1969, which shows he pled guilty and was found guilty of:
   
* failure to go to his appointed place of at the time prescribed on 19 and 20 July 1969
* being AWOL from 21 to 25 July 1969 

   d.  Headquarters, 4th Training  Brigade, U.S. Army Training Center, Armor, SPCM Order Number 36, dated 26 May 1970, which shows he pled guilty and was found guilty of being AWOL from 13 to 16 May 1970. 

6.  On 30 June 1970, the applicant's immediate commander advised him that he was recommending that he be separated under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), due to unfitness with a UD.

7.  His separation packet contains a statement, dated 12 December 1969, which stated the applicant's record disclosed he received four convictions by court-martial and 7 instances of NJP under the provisions of Article 15, UCMJ for three instances of failure to repair and four instances of being AWOL between
5 October 1967 and 7 April 1970.

8.  On 2 July 1970, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration of his case by a board of officers and waived a personal appearance.  The applicant did not submit statements in his own behalf and he waived representation by counsel.  The applicant acknowledged that he understood as a result of the issuance of a UD he could expect to encounter substantial prejudice in civilian life, that he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.

9.  On the same date, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212 for unfitness with an Undesirable Discharge Certificate.  The applicant's immediate commander stated the discharge was being recommended due to the applicant's court-martial convictions and Article 15s.  
10.  On 23 July 1970, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 due to unfitness with the issuance of an Undesirable Discharge Certificate.  

11.  On 28 July 1970, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 2 years, 3 months, and 29 of active service with 475 days of lost time.

12.  On 19 May 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.  

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a stated an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; 
(3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, a UD was normally considered appropriate.

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

   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 meets 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 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 record shows he received seven Article 15s, four special court-martial convictions, and he had 475 days of lost time due to being AWOL.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  The applicant was discharged under the provisions of Army Regulation 
635-212, for unfitness.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

3.  His record shows he was 17 years of age at the time of enlistment; however, he was no younger than other Soldiers who completed their service obligations without the misconduct he committed.  There is no evidence that indicates his mental or physical health contributed to his acts of misconduct.  

4.  There is also no evidence available that indicates he was singled out or treated unfairly by his chain of command.

5.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his discharge to either an honorable or general characterization of service.

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 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)                                         AR20120021018



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ABCMR Record of Proceedings (cont)                                         AR20130000414



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