IN THE CASE OF:	  

		BOARD DATE:	  1 April 2014   

		DOCKET NUMBER:  AR20130013540 


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 undesirable discharge.

2.  The applicant states he was a kid (17 years old) and had not matured enough for Army standards.

3.  The applicant provides no additional documentary 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 was born on 15 May 1954.  He enlisted in the Regular Army on 25 February 1972 for a period of 2 years.  

3.  While in basic combat training (BCT), on 24 April 1972, nonjudicial (NJP) was imposed against him for being absent without leave (AWOL) for 20 minutes on 23 April 1972.  He completed BCT.

4.  While in advanced individual training (AIT), on 12 September 1972, he was convicted by a special court-martial of being AWOL from 8 August 1972 to 
19 August 1972.  He was sentenced to be confined at hard labor for 3 months, to forfeit $50.00 pay per month for 3 months, and to be transferred to the correctional training facility.  On 26 September 1972, the convening authority approved the sentence.

5.  While in AIT, on 12 January 1973, NJP was imposed against him for disobeying a lawful order and possessing marijuana.

6.  On 15 January 1973, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(1), for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.   

7.  On 29 January 1973, NJP was imposed against him for being AWOL for 
6 and 1/2 hours and breaking restriction.

8.  On 2 February 1973, his unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 13, paragraph 
13-5a(1) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  

9.  A bar to reenlistment was imposed against him on 15 February 1973.

10.  Between 15 March 1973 and 21 March 1973, NJP was imposed against him on two occasions for:

* failure to repair (three specifications)
* being AWOL from 16 March 1973 to 19 March 1973 

11.  After consulting with counsel and being advised of his recommended separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

12.  The separation authority's action is not available.


13.  On 11 May 1973, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities with an undesirable discharge.  He completed 11 months and 2 days of total active service with 103 days of lost time.

14.  There is no evidence in the available record that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  

	a.  Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  

	b.  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.

	c.  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 contends he was a kid and had not matured enough for Army standards.  However, age is not a sufficiently mitigating factor.  Although he was 17 years old when he enlisted, he successfully completed BCT.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2.  His brief record of service included five NJPs, one special court-martial conviction, and 103 days of lost time.  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.  Therefore, his record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to an honorable or a general discharge.
3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130013540





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ABCMR Record of Proceedings (cont)                                         AR20130013540



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