IN THE CASE OF:	

		BOARD DATE:	 5 December 2013 

		DOCKET NUMBER:  AR20130005044 


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 discharge.

2.  The applicant states, in effect, his discharge was unjust.  He should receive a general discharge because he was young and going through a lot while trying to adjust to the Army.

3.  The applicant provides no additional 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.  On 31 October 1972, the applicant acknowledged that he understood that upon entering active duty a check will be made to the Federal Bureau of Investigation (FBI) and other agencies to determine previous records of convictions.  The applicant certified that if he intentionally concealed or misrepresented his records regarding his arrest or convictions, he was subject to the Uniform Code of Military Justice (UCMJ) and could be discharged under other than honorable conditions.  

3.  On 2 November 1972, the applicant enlisted in the Regular Army at the age of 19.  On 9 October 1973, he completed training and was awarded military occupational specialty 76A (Supplyman).

4.  On 16 January 1973, the applicant’s commander recommended the applicant be eliminated under the provisions of Army Regulation 635-200 (Enlisted Separations) and his discharge be suspended for six months.  If the applicant continued to display acceptable standards of conduct and duty performance the commander would recommend revocation of the discharge at the end of six months.

5.  The commander informed the applicant that his failure to reveal his arrest prior to entering the military was grounds for separation from the U.S. Army under the provisions of Army Regulation 635-200.  The applicant informed his commander that he was told by his recruiter to disregard the arrest information because it would not remain on his record when it is checked.

6.  The commander argued that the applicant was a minor at the time of the offense, and it is unlikely that any future problems would occur.  The commander stated that based on his observations and the applicant’s platoon sergeant’s recommendation the U.S. Army would greatly benefit the applicant if he remained on active duty.  The commander also argued that approval of the suspension would allow the applicant the opportunity to demonstrate his value to the U.S. Army.

7.  On 1 February 1973, the applicant’s general discharge was suspended for six months and the applicant was placed on probation.

8.  On 13 May 1973, the applicant was pending military charges for escape risk.

9.  On 9 July 1973, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 2 through 3 April 1973 and from 17 April through 11 June 1973.  His approved sentence was confinement at hard labor for 3 months and a forfeiture of pay for 3 months.

10.  On 5 December 1973, the applicant received non-judicial punishment under the provisions of Article 15, UCMJ for being AWOL from 3 through 5 December 1973.
11.  On 6 February 1974, the applicant received non-judicial punishment under the provisions of Article 15, UCMJ for willfully disobeying a lawful order to register his car with a valid post register on Fort Hood, Texas. 

12.  On 28 March 1974, the applicant was advised that he was being considered for elimination under the provision of Army Regulation 635-200 for unfitness.

13.  On 28 March 1974, the applicant was advised of his rights and acknowledged receipt of the commander’s recommendation and proposed actions under the provisions of Army Regulation 635-200.  The applicant waived consideration of his case by a board of officers and elected to provide a statement in his own behalf.  The applicant also acknowledged he understood that if an Undesirable Discharge Certificate were issued he could be deprived of many or all  Army benefits, that he could be ineligible for many or all Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge. 

14.  His records contain an undated certification from the applicant’s commander who acknowledged that the applicant had pay problems.  The applicant did not aid the personnel who tried to help him solve his issue.  He exacerbated the problem with his poor attitude by making sarcastic statements and complaints.  The applicant was accidently overpaid and he used the money to buy himself a car.  The commander states that the applicant was immature and irresponsible which contribute to his constant problems and poor performance.

15.  On 27 March 1974, the applicant provided a statement wherein he indicated that he did not deserve an undesirable discharge.  He argued that he was having family and pay problems, and did not receive the help he needed.  He also stated he was harassed, which caused his acts of indiscipline.

16.  On 6 May 1974, the separation approval authority approved the applicant’s discharge and stated that the applicant will be issued an Undesirable Discharge Certificate (DD Form 258A).

17.  The applicant was discharged on 18 July 1974 under other than honorable conditions.  His DD Form 214 (Report of Separation from Active Duty) shows he completed a total of 11 months and 7 days of creditable active duty with 283 days of time lost due to being AWOL. 

18.  Army Regulation 635-200, 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. 

19.  Army Regulation 635-200, 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.

20.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded was carefully considered and was determined to have insufficient evidence to support his request.

2.  The evidence of record confirms the applicant was separated under the provisions of Army Regulation 635-200, by reason of unfitness.  His separation processing was accomplished in accordance with the applicable regulation at the time and his discharge accurately reflects his overall record of service.

3.  The applicant received non-judicial punishment under the provision of Article 15, UCMJ, on two occasions, in addition to a special court-martial conviction, as well as a previous separation action that was suspended.

4.  The evidence of record shows the applicant had 283 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.

5.  His record shows he was 19 years of age at the time of his enlistment and he was 20 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.



6.  In view of the forgoing, he is not entitled 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)                                         AR20130005044



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ABCMR Record of Proceedings (cont)                                         AR20130005044



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