IN THE CASE OF:	  

		BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130017711 


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 discharge under other than honorable conditions to honorable.

2.  The applicant states he was only 17 years old when he entered the Army and he had never been away from home before.  He states he did not have any major problems during his service, only minor infractions.

3.  The applicant provides no additional 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.  On 2 February 1973, the applicant enlisted in the Regular Army at 17 years of age.  He completed initial entry training and was awarded military occupational specialty 91A (Medical Corpsman).

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three occasions:

* on 7 September 1973, for failing to go at the prescribed time to his appointed place of duty on or about 7 September 1973
* on 3 October 1973, for failing to go at the prescribed time to his appointed place of duty on or about 2 October 1973
* on 6 November 1973, for disrespecting a superior noncommissioned officer on or about 26 October 1973

4.  On 26 October 1973 before a special court-martial at Fort Rucker, AL, he was found guilty of a single specification of violating a lawful general regulation by wrongfully possessing marijuana on or about 25 June 1973.

5.  On 11 January 1974, his immediate commander notified him of his intent to eliminate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, due to unfitness.

6.  On 11 January 1974, the applicant acknowledged receipt of the notification memorandum; specifically, that 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.  He elected representation by counsel and to personally appear before, and have his case heard by, a board of officers.  He chose not to submit statements in his own behalf.

7.  In conjunction with his counseling, he acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions.  Additionally, he further understood that as a result of the issuance of an undesirable discharge (under other than honorable conditions), he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

8.  On 15 January 1974 subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13.

9.  On 4 February 1974, an administrative separation board convened to consider his discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness.  The board found him undesirable for further service and recommended his discharge from the Army under other than honorable conditions by reason of unfitness.

10.  On 15 March 1974, the separation authority approved the board's findings and recommendation.  He directed the applicant's discharge and the issuance of an Undesirable Discharge Certificate.

11.  On 19 March 1974, the applicant was discharged accordingly.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 1 month, and 18 days total active service.  His DD Form 214 further shows:

* he was discharged under the provisions of Army Regulation 635-200, chapter 13, and assigned separation program designator (SPD) 386 (established pattern of shirking)
* his service was characterized as under other than honorable conditions
* he was issued an Undesirable Discharge Certificate

12.  On 16 June 1975, the Army Discharge Review Board determined he was properly discharged and denied his petition for an upgrade.

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

	a.  Paragraph 3-7a states 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 states 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.

	c.  Chapter 13, in effect at the time, provided 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.  An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he was young when he entered the service and he didn't have any major problems, only minor infractions.

2.  His records reveal a history of misconduct that included three instances of nonjudicial punishment and a conviction by a special court-martial.  Accordingly, his command initiated his separation for unfitness.

3.  His separation action was accomplished in compliance with applicable regulations with 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 character of service were both proper and equitable.  He had an opportunity to submit a statement wherein he could have expressed his concerns, but he declined to do so.

4.  He contends his discharge should be upgraded because he was young.  His records reveal that he enlisted in the Regular Army at the age of 17; however, despite his age, 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.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to the requested relief.


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 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)                                         AR20130017711



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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