IN THE CASE OF:	  

		BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130017963 


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 to a general discharge.

2.  The applicant states he wants his discharge upgraded so he can go to school and better himself.  He was 20 years old at the time and he made the wrong decisions.  He is very sorry and is wiser now.

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.  The applicant enlisted in the Regular Army on 30 April 1971.  He was honorably discharged for immediate reenlistment on 29 May 1973 at 19 years of age.  He was assigned to the 142nd Signal Battalion, Fort Hood, TX.

3.  On 29 August 1973, he was administratively dismissed from a leadership course at Fort Hood because he did not possess the ability or desire to complete the course.

4.  On 1 October 1973, he received a letter of reprimand (LOR) from his immediate commander.  The commander stated the LOR was for not completing his assigned duties on 13 September 1973, being extremely disrespectful toward his platoon leader after being found asleep on duty on 20 September 1973, and for being disrespectful toward the officer of the guard on 23 September 1973.  The LOR was an administrative action and it was not given as punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).

5.  He received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ as follows on:

* 11 December 1973, for failing to be at his appointed place of duty
* 11 February 1974, for two specifications each of failing to be at his appointed place of duty

6.  On 17 February 1974, he was arrested by the civilian police, Killeen, TX, and charged with unlawfully carrying a firearm.

7.  On 4 March 1974, he received NJP under the provisions of Article 15, UCMJ, for failing to be at his appointed place of duty.

8.  On 11 March 1974, his immediate commander notified him that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for misconduct - unfitness.  He acknowledged notification of the proposed discharge action.  

9.  On 25 March 1974, his immediate commander recommended he be required to appear before a board of officers to determine if he should be discharged for unfitness.  The commander stated discharge action was being recommended because of his attitude toward his responsibilities, superiors, and all authority.  He repeatedly shirked his duty, was late for duty, and treated authorities with contempt.  He had shown no desire/inclination to improve himself and was awaiting civil trial for possession of a prohibited weapon.

10.  On 1 April 1974, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to him.  He further acknowledged he understood if he were issued an undesirable discharge he may 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.  He waived consideration to have his case by a board of officers and declined to submit a statement in his own behalf.

11.  The separation authority subsequently approved his discharge under the provisions of Army Regulation 635-200, paragraph 13-5a(1), for misconduct - frequent incidents of a discreditable nature with civil or military authorities.

12.  He was reported absent without leave (AWOL) from his assigned unit from 15 to 18 April 1974.  He was also reported AWOL on 6 June 1974.  His command was subsequently notified by the Federal Bureau of Investigation that he had been arrested by civil authorities in St. Louis, MO. 

13.  On or about 28 August 1974, he was returned to military control at Fort Leonard Wood, MO.  He was ultimately discharged on 29 August 1974.

14.  The DD Form 214 (Report of Separation from Active Duty) he was issued for this period of service confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1), with an under other than honorable conditions characterization of service.  During this period of service, he completed 11 months and 21 days of net active service with 98 days of lost time due to being AWOL or in confinement.

15.  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.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1), in effect at the time, provided that individuals would be discharged by reason of misconduct when their records were characterized by frequent incidents of a discreditable nature with civil or military authorities.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this paragraph.  

17.  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 evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for failing to go to his place of duty on four separate occasions and his arrest by civil authorities for unlawfully carrying a firearm.  Accordingly, his commander initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for misconduct - frequent acts of a discreditable nature.  

2.  In addition, after separation action was initiated against him he went AWOL on two occasions and was again arrested by civil authorities.

3.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  

4.  The applicant contends that his discharge should be upgraded because he was 20 years of age at the time of his offenses and he made the wrong decisions.  Although he was 20 years of age, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

5.  Based on his overall record, his service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to a general 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)                                         AR20130017963



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ABCMR Record of Proceedings (cont)                                         AR20130017963



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