IN THE CASE OF:	  

		BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20130018146 


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.

2.  The applicant makes no statement.

3.  The applicant provides a letter from his wife.

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.  After having had prior service, the applicant enlisted in the Regular Army (RA) on 1 March 1973 at the age of 20 years and 10 months.  The highest rank/grade he attained while serving on active duty was private first class/E-3. 
3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on the following three occasions:

* on 30 May 1973, for being absent from his appointed place of duty at the time prescribed on 29 May 1973
* on 2 July 1973, for being absent without leave (AWOL) from 25 June to 
2 July 1973
* on 24 January 1974, for being AWOL from 7 to 23 January 1974

4.  On 3 April 1974, before a special court-martial at Fort Bliss, TX, he was found guilty of a single specification of absenting himself from his unit from on or about 18 February to 1 April 1974.

5.  Between 30 May 1973 and 17 May 1974 the applicant was counseled for numerous offenses to include being AWOL, for not being at his appointed place of duty at the time prescribed, not being prepared for inspection, sleeping during duty hours, failure to follow instructions, being in an improper uniform, and talking in formation. 

6.  On 31 May 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.

7.  On 31 May 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 to waive representation by counsel, to personally appear before the board, and to have his case heard by a board of officers.  He also chose not to submit statements in his own behalf.

8.  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 acknowledged that he understood as a result of the issuance of an undesirable discharge 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.

9.  On an unknown date the separation authority approved the applicant's discharge recommendation, waived further rehabilitation, and directed the issuance of an Undesirable Discharge Certificate.
10.  On 4 June 1974, the applicant was discharged accordingly.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 11 months and 11 days active service during the period under review.  His DD Form 214 further shows:

* he was discharged under the provisions of Army Regulation 635-200, chapter 13, and assigned a separation program designator code of 28B (involved in frequent incidents of a discreditable nature with civil or military authorities)
* his service was characterized as under other than honorable conditions
* he was issued an Undesirable Discharge Certificate

11.  The applicant submitted a letter of support from his spouse who states, in effect:

* the applicant was very young at the time of enlistment and he made many regrettable choices during his second period of enlistment
* they both faced many pressures that come with service-connected families
* when she took their daughter and returned to Mississippi this partially led to his AWOL and subsequent unfavorable behavior 
* since being separated from the Army, her husband has lived a successful life and helped raised three children and he is now a grandfather

12.  There is no indication the applicant 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 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's contention that his discharge should be upgraded was carefully considered; however, it was determined there is insufficient evidence to support his request.

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.  The evidence that he provided indicates his discharge should be upgraded because he was young.  His records reveal that he enlisted in the RA at the age of almost 21; 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 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)                                         AR20130018146



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ABCMR Record of Proceedings (cont)                                         AR20130018146



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