IN THE CASE OF:	   

		BOARD DATE:	  25 March 2014

		DOCKET NUMBER:  AR20130013091 


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 that his undesirable discharge be upgraded to a more favorable discharge.

2.  The applicant states that he did his job in Vietnam and when he returned to the United States he did not fit in to the Army and did not like stateside duty.  He goes on to state that he has worked for 40 years and has been in no trouble.

3.  The applicant provides no additional documents with his application.

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 enlisted in the Regular Army on 25 November 1970 for a period of 3 years.  He completed his basic training at Fort Knox, Kentucky and was transferred to Fort Polk, Louisiana to undergo training as a wheel vehicle mechanic.  He completed that training and was transferred to Fort Sill, Oklahoma where he completed training as a track vehicle mechanic.

3.  He was transferred to Vietnam on 21 July 1971and was advanced to the pay grade of E-4 on 13 September 1971.  He departed Vietnam on 18 April 1972 and was transferred to Fort Meade, Maryland. 

4.  The applicant went absent without leave (AWOL) from 30 May to 4 June 1972; however, the record is silent as to any punishment imposed for that absence. 

5.  On 26 September 1972, he was convicted by a summary court-martial of being AWOL from 14 August to 30 August and 11 September to 19 September 1972.

6.  On 18 December 1972, he was convicted by a summary court-martial for being AWOL from 5 October to 9 November 1972. 

7.  The applicant again went AWOL on 31 January 1973 and remained absent in desertion until he was apprehended by civil authorities in Alabama on 5 June 1973 and was transferred first to Redstone Arsenal, Alabama and then to Fort Campbell, Kentucky where charges were preferred against him.

8.  On 13 July 1973, he was convicted by a special court-martial at Fort Campbell, Kentucky of being AWOL from 31 January to 5 June 1973.  He was sentenced  confinement at hard labor for 145 days and a forfeiture of $140.00 per month for 5 months.  He was initially confined at the post stockade at Fort Benning, Georgia and then was transferred to the Army Retraining Brigade at Fort Riley, Kansas.

9.  On 17 August 1973, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 13, for unfitness based on his frequent involvement in incidents of a discreditable nature with civil/military authorities.  He went on to state that since the applicant’s arrival at the retraining brigade his actions preclude accomplishment of the objective as evidenced by his receipt of 10 adverse observation reports.  The applicant demonstrates a disregard for military authority and indicates no desire for returning to duty.  He went on to state that it was obvious that his primary objective was to be eliminated from the service by any means despite extensive counseling by professional staff members.  

10.  After counsulting with defense counsel, the applicant waived all of his rights.
11.  The appropriate authority approved the recommendation for discharge on   22 August 1973 and directed that he be furnished an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged under other than honorable conditions on 
25 August 1973 under the provisions of Army Regulation 635-200, chapter 13 due to unfitness.  He had served 2 years and 4 days of active service and had 265 days of lost time due to AWOL and confinement.

13.  There is no evidence in the available records to show that he applied to the Army Discharge review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 established policy and procedures for separating personnel for unfitness.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  A discharge under other than honorable conditions was normally considered appropriate.

15.  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.

16.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating when compared to his repeated acts of misconduct and his undistinguished record of service.

4.  Accordingly, his overall record of service does not rise to the level of an honorable or general discharge (under honorable conditions) when considering his repeated acts of misconduct and substandard performance during the period in question.

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)                                         AR20130013091





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ABCMR Record of Proceedings (cont)                                         AR20130013091



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