IN THE CASE OF:	  

		BOARD DATE:	  27 August 2013

		DOCKET NUMBER:  AR20130001258 


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 under other than honorable conditions discharge. 

2.  The applicant states he was an only child at the time.  He was only 18 years of age and he was a problem at home. 

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* Congressional correspondence

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 XX May 1952 and enlisted in the Regular Army at nearly 19 years of age on 16 March 1971.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 76Y (Unit Supply Specialist).   

3.  On 21 May 1971, at Fort Leonard Wood, MO, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) on 20 May 1971. 

4.  On 3 August 1971, at Fort Lee, VA, he was convicted by a special court-martial of one specification of disobeying a lawful order from a superior commissioned officer.  The court sentenced him to a forfeiture of pay and a reduction to the lowest enlisted grade.  The convening authority approved the sentence on 12 August 1971. 

5.  On 29 January 1972, at Fort Ord, CA, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 4 to 28 January 1972. 

6.  On or about 10 March 1972, he was reassigned to Vietnam.  However, as a result of his request for compassionate reassignment and with Congressional help, he left Vietnam on or about 17 May 1972 and he was assigned to Fort Leonard Wood, MO. 

7.  On 3 November 1972, at Fort Leonard Wood, MO, he was convicted by a special court-martial of one specification of willfully disobeying a lawful command.  The court sentenced him to a forfeiture of pay, hard labor without confinement for 30 days, restriction for 30 days, and again a reduction to the lowest enlisted grade.  The convening authority approved the sentence on 24 November 1972. 

8.  On 11 January 1973, at Fort Leonard Wood, MO, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty. 

9.  The complete facts and circumstances surrounding the applicant’s discharge processing are not available for review with this case.  However, his record contains the following documents:

	a.  Special Orders Number 191, issued by Headquarters, U.S. Army Training Center, Fort Leonard Wood, MO, on 10 July 1973, directing the applicant's discharge from the Army, effective 10 July 1973 in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) with an under other than honorable conditions discharge, by reason of unfitness.
	b.  A properly-constituted DD Form 214 that shows he was discharged on 
10 July 1973 under the provisions of chapter 13 of Army Regulation 635-200 for unfitness - established pattern of shirking in the rank/grade of private/E-1, with an under other than honorable conditions discharge.  This form also shows he completed 2 years, 3 months, and 2 days of creditable active service and he had 24 days of lost time.

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 limitation.

12.  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, characterized as under other than honorable conditions, was normally issued unless the particular circumstances warranted an honorable or a general discharge.

	a.  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.

	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 is void of the complete facts and circumstances that led to his discharge.  However, his record contains a properly-constituted 
DD Form 214 that shows he was discharged on 10 July 1973 under the provisions of chapter 13 of Army Regulation 635-200 for unfitness with an under other than honorable conditions discharge.

2.  The applicant's records reveal an extensive history of misconduct that included three instances of NJP, multiple periods of AWOL, and two court-martial convictions.  It appears his chain of command initiated separation action against him.  It also appears his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were presumably 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 both are presumed to be proper and equitable.

3.  The applicant was nearly 19 years of age at the time of his enlistment and nearly between 20 and 21 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

4.  The applicant was not discharged because he was an only child.  He was discharged because he was unfit for military service.  His repeated misconduct, failure to respond to counseling, being a constant disciplinary problem, and lack of desire to conform to military way of life appear to have led his chain of command to believe he was of no value to the unit.

5.  Based on his extensive 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)                                         AR20130001258





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ABCMR Record of Proceedings (cont)                                         AR20130001258



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