BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20130013839 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states:

   a.  He served three years with a nuclear strike unit at Fort Sill, OK.  During the summer of his second year his unit was placed on alert.  After speaking with his therapist and taking a memory test, his therapist concluded he must have suffered a mild stroke when his unit was placed on alert. 

   b.  He claims he suffers from periodic memory problems and a slight stammer in speech.  His performance in the Army declined after the stroke and he believes if he didn't accept the undesirable discharge, bad conduct and jail time may have soon followed.

   c.  He felt it best to accept the undesirable discharge as soon as possible in order to avoid a bad conduct discharge.  He believes he was too young to wake up to the unbelievable…"a nuclear strike unit on Defense Readiness Condition alert."

3.  The applicant provides a self-authored statement and a copy of his DD Form 214 (Report of Separation from Active Duty).




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 22 January 1973, at the age of 17 years, 2 months, and 11 days.  

3.  The evidence shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 16 October 1973, for leaving his appointed place of duty in the field
* 25 January 1974, for being absent from his place of duty for the period    22 through 23 January 1974
* 22 March 1974, for absenting himself from his unit on 13 March 1974
* 12 July 1974, for failing to obey a lawful order and for absenting himself from his place of duty
* 23 May 1975, for being absent from his unit for the period 30 April through 11 May 1975
* 24 November 1975, for being absent from his unit for the period               15 through 18 November 1975
* 29 December 1975, for being absent from his unit for the period 2 through 23 December 1975

4.  Evidence shows the applicant was repeatedly counseled from 4 August 1975 through 23 December 1975 for missing multiple formations, an unsatisfactory attitude, poor room and personal appearance, and repeated instances of being absent without leave (AWOL).

5.  On 13 January 1976, his immediate commander referred the applicant for a medical evaluation in preparation of separation action in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations).  The applicant was examined by competent medical authorities and deemed qualified for separation.  The following day the applicant underwent a psychiatric evaluation which noted the applicant was a 20-year old E-1 with three years of active duty.  He had a long history of drug abuse.  He was enrolled in the drug rehabilitation program for several months until June 1975; however, since that time he continued to use drugs intermittently.  He was diagnosed with an antisocial personality disorder with drug abuse.  Based on his minimal motivation for positive change, the applicant's psychiatric difficulties were not considered to be amenable to treatment.

6.  On 29 January 1976, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 due to the applicant's habits and traits manifested by repeated misbehavior, negative attitude toward his superiors, apathy toward the Army, inability to conform to established military pattern, and failure to respond to repeated attempts to aid in rehabilitation.

7.  The applicant acknowledged receipt of the commander's intent to separate him and indicated he did not desire to consult with legal counsel.  He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  

8.  He waived consideration of his case by a board of officers, waived a personal appearance before a board of officers.  He elected to submit a statement in his own behalf in which he requested leniency in an attempt to receive a General Discharge Certificate.  He stated he had problems with his marriage and his wife decided not to live with him.  Since that time he grew to hate the Army and his attitude and performance suffered.

9.  Subsequent to this acknowledgement, the applicant's immediate commander initiated elimination action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness.

10.  On 18 February 1976, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 13, and directed that he be issued an Undesirable Discharge Certificate.

11.  On 24 February 1976, the applicant was discharged accordingly.  The
DD Form 214 he was issued confirms he was separated under other than honorable conditions and he completed 2 years, 11 months, and 29 days of creditable active military service with 35 days of lost time.
  
12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  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, under other than honorable conditions discharge was normally considered appropriate.

14.  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.

15.  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 request for an upgrade of his discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's contentions are noted; however, his records reveal a history of misconduct that began in his first year of service which includes several instances of NJP, frequent counseling, and time lost.  He was provided with multiple counselings and/or opportunities for rehabilitation by his chain of command but he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.  

3.  The evidence of record shows the applicant's separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

4.  The applicant was over 17 years of age at the time of his enlistment and over 20 years old when he concluded his pattern of misconduct.  However, there is insufficient evidence in the available records and the applicant has not provided sufficient evidence to show his acts of indiscipline were the result of his age or a medical condition.  

5.  After reviewing the applicant's entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, 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)                                         AR20130013839





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ABCMR Record of Proceedings (cont)                                         AR20130013839



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