IN THE CASE OF:	   

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130015343 


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 under other than honorable conditions discharge. 

2.  The applicant states he was told if he took the discharge at the time it would be changed to a general discharge since he had very little time left in the service. 

3.  The applicant provides three statements, discharge orders, and 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 for 3 years on 11 April 1972.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  He served at Schofield Barracks, HI, with the 1st Battalion, 14th Infantry Regiment, from on or about 13 September 1972 to on or about 20 April 1974.  While at Schofield Barracks, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 2 January 1973, operating a motor vehicle without a valid post registration, possessing another (individual's) identification, setting fire to Government property, and being drunk and disorderly
* 17 April 1973, disobeying a lawful order
* 5 July 1973, twice failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order
* 16 November 1973, being absent without leave (AWOL) from 8 to 12 November 1973 and 14 to 16 November 1973

4.  Also while at Schofield Barracks, his commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct, inability to adapt and make necessary adjustments, displaying a negative attitude, lacking the desire or ability to become an effective Soldier, and not responding to repeated counseling. 

5.  The applicant was provided with a copy of this bar but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the approval authority. 

6.  Upon completion of his Hawaii tour, he was reassigned to Fort Campbell, KY. While at Fort Campbell, he accepted NJP under the provisions of Article 15 of the UCMJ on/for:

* 17 June 1974, failing to go at the time prescribed to his appointed place of duty and being AWOL from 5 to 7 June 1974
* 8 July 1974, failing to go at the time prescribed to his appointed place of duty

7.  On 25 July 1974, the applicant's immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to unfitness.  The immediate commander requested a waiver of any further requirements for counseling or rehabilitative transfer because prior attempts had failed.  Specifically, the immediate commander cited the applicant's:
* unkempt and disruptive personal appearance
* lack of motivation and continued failure to make any attempts to improve the standards 
* having an adverse effect on the morale and discipline of the unit
* being a constant disciplinary problem since arrival despite several counseling attempts
* having multiple UCMJ violations and no desire to conform to the military way of life
* continued efforts at malingering by going on sick call when the platoon goes to the field

8.  On 25 July 1974, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for unfitness.  The applicant waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He further elected to submit a statement on his own behalf; however, his statement is not available for review with this case.  He also acknowledged that:

* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he may encounter substantial prejudice in civilian life

9.  The applicant's intermediate and senior commanders recommended approval of the discharge action.  The senior commander opined the applicant was unfit for military service.  

10.  On 2 August 1974, the separation authority approved the applicant's discharge under the provisions of paragraph 13-9 of Army Regulation 635-200 and ordered the applicant discharged, reduced to the lowest enlisted grade, and issued an Undesirable Discharge Certificate.  The applicant was discharged accordingly on 5 August 1974.

11.  His DD Form 214 shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with an Undesirable Discharge Certificate.  He completed 2 years, 3 months, and 19 days of creditable active military service during this period and he had 6 days of lost time.

12.  On 4 September 1975 and 4 August 1981, the Army Discharge Review Board (ADRB) reviewed his discharge but in each case found it proper and equitable.  Accordingly, the ADRB twice denied his petition for an upgrade of his discharge. 

13.  He provides:

	a.  A self-authored statement reflecting on his service and life and the importance of upgrading his discharge and its effect on his personal and professional life. 

	b.  A statement from an acquaintance and supervisor who describe him as a quick learner and a hard worker.  

	c.  A statement from a subordinate who also describes him as a good person with professional ethics. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

	a.  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.

	b.  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 records reveal an extensive history of misconduct that included at least five instances of NJP, two periods of AWOL, a bar to reenlistment, and an extensive history of negative counseling for misconduct.  He was provided counseling and/or multiple opportunities for rehabilitation by various members of his chain of command, but he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

2.  The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

3.  The Army never had nor does it now have a policy wherein a characterization of service is upgraded to general because a member had very little time left in the service.  The chain of command afforded him the opportunity to be considered by a board of officers.  That would have been the proper forum to raise any extenuating circumstances.  

4.  Based on his extensive record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general or 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 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)                                         AR20130015343





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ABCMR Record of Proceedings (cont)                                         AR20130015343



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