IN THE CASE OF:
BOARD DATE: 13 May 2014
DOCKET NUMBER: AR20130014323
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, correction of his dates of service.
2. The applicant states his period of service was from 3 October 1973 through 2 January 1976.
3. The applicant provides no supporting documentation.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests the applicant's discharge be upgraded to an honorable discharge (HD).
2. Counsel states the applicant was clearly not cut out for military service. Having completed only up through the 10th grade, he has paid for his mistakes of 40 years ago.
3. Counsel provides additional supporting documentation.
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 3 October 1974 and was reported absent without leave (AWOL) on 16 October 1974.
3. On 22 November 1974, general court-martial charges were preferred for his period of AWOL with intent to remain absent, theft of an automobile, and theft of a purse from a civilian.
4. On 26 November 1974, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for going AWOL from 16 October 1974 through 18 November 1974.
5. The available record does not include any documentation related to the separation processing and shows the applicant did not complete basic training.
6. On 5 December 1974, the applicant was discharged for unsuitability, apathy and defective attitude. He received an under honorable conditions (general) discharge (GD). The DD Form 214 shows 1 month and 1 day of creditable service with 33 days of lost time.
7. The record contains no evidence of any additional period of active service or Reserve obligation following his 5 December 1974 discharge.
8. There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statutory limit.
9. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. It provides the following:
a. Paragraph 3-7a states that an HD is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldiers service has met the standards of acceptable conduct and performance of duty.
b. Paragraph 3-7b states that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD.
c. Chapter 13, as then in effect, stated enlisted personnel found to be unfit or unsuitable for further military service could be discharged under this chapter for divers reasons including under paragraph 13-5b(3), for apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.
DISCUSSION AND CONCLUSIONS:
1. The record does not contain and the applicant has not provided any evidence of any military service after 5 December 1974.
2. The applicant did not complete basic training and he had more lost time than creditable service. There is no indication of any redeeming service and the mere passage of time is insufficient to warrant an upgrade.
3. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.
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) AR20130014323
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ABCMR Record of Proceedings (cont) AR20130014323
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