IN THE CASE OF:	  

		BOARD DATE:	  13 August 2013

		DOCKET NUMBER:  AR20130001723 


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 young and immature at the time.  If he could go back and correct his mistakes he would. 

3.  The applicant did not provide any evidence. 

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 January 1954 and enlisted in the Regular Army at 18 years and 5 months of age on 6 June 1972.  He completed basic combat and advanced individual training and he held military occupational specialty 55B (Ammunition Storage Handling Specialist).  

3.  He was reported in an absent without leave (AWOL) status from his Fort Hood, TX unit fromm 4 June to 11 June 1973.  

4.  He served in Korea from on or about 20 August 1974 to on or about 16 September 1975.  While in Korea, he was honorably discharged on 3 February 1975 for the purpose of immediate reenlistment.  

5.  He reenlisted in the Regular Army on 4 February 1975 and upon completion of his Korea tour, he was reassigned to Fort Hood, TX.  He was promoted to sergeant/E-5 on 15 November 1976

6.  On 4 May 1977, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of military Justice for negligently failing to stay awake during his duty as charge of quarters and wrongfully appearing out of uniform during duty as charge of quarters.  He was reduced to specialist four/E-4.

7.  On 31 May 1977, he departed his unit in an AWOL status and 8 June 1977, he returned to military control.  

8.  On 14 June 1977, he was convicted by a summary court-martial of four specifications of failing to go at the time prescribed to his appointed place of duty and one specification of being AWOL from 31 May to 8 June 1977.  The court sentenced him to a reduction to E-2, a forfeiture of pay, and 45 days of hard labor without confinement.  The convening authority approved his sentence on the same date. 

9.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his records contain:

	a.  Orders 244-55, issued by Headquarters, III Corps and Fort Hood, Fort Hood, TX, on 13 December 1977, discharging him from active duty effective 16 December 1977. 

	b.  A duly-constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 16 December 1977, under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-5a, for misconduct -frequent involvement of a discreditable nature with authorities with the issuance of an undesirable discharge.  He completed 2 years, 10 months, and 10 days of creditable active military service during this period of service and he had 8 days of lost time. 

10.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

11.  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 record is void of the complete facts and circumstances that led to his discharge action.  However, his record contains a DD Form 214 that shows he was discharged on 16 December 1977 under the provisions of Army Regulation 635-200 for misconduct.

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He provided no information that would indicate the contrary.

3.  It appears his discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  This is evidenced by his multiple instances of misconduct (NJP, AWOL) and a court-martial conviction.  His character of service appears to be commensurate with his overall record of military service.  The reason for discharge and the characterization of service were presumably both proper and equitable.  

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20130001723





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130001723



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1