BOARD DATE:	27 August 2013

		DOCKET NUMBER:  AR20130001292 


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 his under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states he was only 17 years old when he enlisted.  He was not able to enlist without a release from his parents.  He was not prepared mentally and emotionally for military service.  He enlisted in the Army at the encouragement of his father who was a 20-year Army combat veteran.  At the time, his parents were going through a divorce. 

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’s record shows he enlisted in the Regular Army on 
30 September 1972.  He completed training and was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Repairman).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  The available records show he:

* accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on three occasions
* was convicted by a special court-martial of offenses including willful disobedience and violation of a lawful general order

4.  On 20 June 1974, the applicant was notified of the initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unfitness due to frequent incidents of discreditable nature with civil or military authorities.

5.  He consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a discharge under other than honorable conditions, and the rights available to him.  He waived consideration of his case by and personal appearance before an administrative separation board. He also elected not to make any statements in his own behalf.

6.  On 3 July 1974, his immediate commander initiated the applicant's discharge for unsuitability due to frequent incidents of discreditable nature.  The commander stated the applicant had been counseled repeatedly and that the applicant stated on numerous occasions that he could not be a Soldier and desired to be discharged.  His duty performance and appearance were totally unsatisfactory.  

7.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of an Undesirable Discharge Certificate.  On 19 August 1974, the applicant was discharged accordingly.  His DD Form 214 shows he had completed 1 year,
5 months, and 29 days of total active service with 142 days of lost time.
 
8.  On 21 October 1981, the Army Discharge Review Board determined he had been properly discharged and denied his request for a change in the type and nature of his discharge.  

9.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 

10.  Army Regulation 635-200, 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.  

11.  The table of Maximum Punishments of the Manual of Courts-Martial shows that a punitive discharge is authorized for offenses of willful disobedience and violation of a lawful general regulation. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided any evidence or a sufficiently mitigating argument to warrant an upgrade of his discharge.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.   Although the applicant was 
17 years of age at the time of his enlistment, he was 18 years of age at the time he was convicted by a special court-martial.  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.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.

4.  Based on his record of misconduct, including offenses which could have resulted in a punitive discharge, 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 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)                                         AR20100009951



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ABCMR Record of Proceedings (cont)                                         AR20130001292



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