IN THE CASE OF:	  

		BOARD DATE:  1 April 2014

		DOCKET NUMBER:  AR20130013484 


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 reconsideration of his earlier request for an upgrade of his under honorable conditions (general) discharge. 

2.  The applicant states:

	a.  The consent for his enlistment in 1976 was not given by his legal guardian. He lived with his foster parents for 7 years.  The consent form, however, was signed by his biological mother.  She was mentally deficient at the time and that was the reason he was in a foster home in the first place.  This is the argument to support his age and immaturity as related to his lack of honorable conduct during his enlistment.  

	b.  He did not receive timely recognition of his promotion until months after his arrival in Korea.  This delay created stress and caused his depression which in turn led to a rapid decline in his rank and behavior as a Soldier. 

3.  The applicant provides:

* DD Form 873 (Consent, Declaration of Parent or Legal Guardian)
* DARC Form 239-1 (Address Change)
* Unit Orders Number 6 (promotion to specialist four (SP4)/E-4)
* Personal statement
* Extract of the Army Discharge Review Board (ADRB) Record of Proceedings
* Enlisted Evaluation Reports
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) AR20110025124, dated 10 July 2012.

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his application was not received within one year of the original Board decision.  However, his application is dated 11 July 2013 and was received on 16 July 2013 which appears to be within one year of the date he received the original decision.  He also provides a new argument.  His request will be considered by the Board as an exception to policy. 

3.  The applicant's records show he was born on XX October 1957.  His guardian mother signed a consent form for enlistment of a minor in the U.S. Armed Forces.   His mother indicated his father was deceased and he had no other legal guardian than her.  

4.  The applicant enlisted in the Regular Army at 17 years of age on 22 October 1974.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 24E (HAWK Missile Fire Control Mechanic).  He was promoted to private (PV2)/E-2 on 22 February 1975.

5.  On 2 April 1975, at Fort Bliss, TX, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana.  

6.  He was promoted to private first class/E-3 on 23 October 1975 and SP4/E-4 on 19 March 1976.

7.  He served in Korea from on or about 19 May 1976 to on or about 5 April 1977. He was assigned to Battery A, 2nd Battalion, 71st Air Defense Artillery. 

8.  On 22 December 1976, he accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) on 30 November 1975.  His punishment consisted of a reduction to PFC/E-3, a forfeiture of pay, and restriction and extra duty. 

9.  He appealed his punishment on 22 December 1976 and the next higher commander granted partial relief in that he suspended the reduction in grade to PFC/E-3 for until 30 April 1977. 

10.  On 30 December 1976, the suspension of the punishment to reduction to PFC/E-3 imposed against the applicant was vacated and ordered executed. 

11.  On 3 March 1977, the applicant departed his unit in an AWOL status but he returned to military control on 17 March 1977.  

12.  On 26 March 1977, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 3 to 17 March 1977.  

13.  On 15 March 1977, his immediate commander notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph   5-37 (Expeditious Discharge Program (EDP)).  His immediate commander remarked that the applicant had received NJP on three separate occasions, failed to react or respond to counseling, and displayed an apathetic attitude towards job performance, self-improvement and the Army in general.  His attitude had also demonstrated an unhealthy influence on other troops.  He further recommended a general discharge.

14.  On 15 March 1977, the applicant acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army, the effect on future enlistment in the Army, the possible effects of a general discharge under honorable conditions, and the procedures and rights available to him.  The applicant further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge.  He elected to submit a statement on his own behalf.  He voluntarily consented to the discharge.

15.  In his statement, he stated his problems started in Battery A, 2nd Battalion, 7th Air Defense Artillery.  He was an E-4 with about 8 months of time in service and was ready to go before the E-5 board.  However, he had been under stress since December 1976 and he had been trying to deal with the trouble he was in.  One of his problems was that his records showed his rank as E-3 but he believed he should have been an E-4.  He requested early reassignment to the continental United States or in the alternate he consented to his discharge. 

16.  The applicant's immediate commander subsequently initiated separation action against him.  The immediate commander recommended the issuance of a General Discharge Certificate.

17.  The separation authority approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 by reason of failure to meet acceptable standards for continued military service and directed that he receive a General Discharge Certificate.  On 6 April 1977, the applicant was discharged accordingly.  

18.  His DD Form 214 shows he was discharged under the provisions of paragraph 5-37 of Army Regulation 635-200 with a general characterization of service.  He completed 2 years, 6 months, and 14 days of creditable active service and he had 1 day of lost time. 

19.  On 21 May 1986, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  Accordingly, the ADRB denied his request for a change in the character and/or reason for separation. 

20.  Army Regulation 635-200 provides for the separation of enlisted personnel.  Paragraph 5-37, in effect at the time, provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an Honorable Discharge Certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.

21.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel because of his inability to adapt to military life.  Accordingly, his immediate commander initiated separation action against him.  He was advised of his rights and consented to the discharge action.

2.  His 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 reason for separation were appropriate. Most importantly, he consented to his discharge. 

3.  The available evidence shows the applicant's mother was the only legal guardian he had and as such, she was the one that consented to his enlistment.  Moreover, although he was 17 years of age to at the time he enlisted, he was nearly 19 years of age at the time his misconduct began.  Nevertheless, there is no evidence he was any less mature than other Soldiers of the same age who successfully completed their military service. 

4.  Based on his overall service, including his Article 15, lost time, and history of counseling, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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 to amend the decision of the ABCMR set forth in Docket Number AR20110025124, dated 10 July 2012. 



      _______ _  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)                                         AR20130013484





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ABCMR Record of Proceedings (cont)                                         AR20130013484



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