IN THE CASE OF: 

		BOARD DATE:	    17 June 2014

		DOCKET NUMBER:  AR20130018368 


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 his undesirable discharge be upgraded to an honorable discharge.

2.  He states his misconduct was due to his inability to cope with the pressure that was placed on him at a time when he was too immature to understand.

3.  He provides:

* Letter from his mother
* Self-authored statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Discharge orders
* DA Form 20 (Enlisted Qualification Record)

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 was born on 7 March 1952 and he enlisted in the Regular Army on 7 July 1969 at the age of 17.  

3.  His disciplinary history includes two convictions by summary court-martial on 16 July and 27 November 1970 for the following offenses:

* being absent without leave (AWOL) from 7 February to 26 March 1970
* being AWOL from 21 to 22 April 1970
* escaping from lawful confinement on 1 May 1970
* being AWOL from 16 September to 23 October 1970

4.  The applicant's complete discharge packet is not available for review.  The separation authority directed the applicant be discharged under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge -Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), section VI with issuance of an Undesirable Discharge Certificate.

5.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-206, section VI, by reason of being convicted or adjudged a juvenile offender by a civil court during his current term of active military service.  He was issued a DD Form 258A (Undesirable Discharge Certificate).  His service was characterized as "under other than honorable conditions."  He completed 1 year, 3 months, and 5 days of net service this period with 151 days of lost time.  

6.  He provided a self-authored statement wherein he stated:

	a.  He loved the Army and planned to make it his career when he joined at the age of 17 in 1969.

	b.  He raised his siblings and was extremely proud when he was inducted into the Army.  

	c.  He went home on a 30-day leave of absence to handle family problems shortly after entering basic training and during his on-the-job training at Fort Rucker, AL.  



   d.  He tried to get an extension, but he was denied.  He didn't want to be AWOL, but he wanted to make sure his sister was safe.  He continued to escape whenever he was apprehended so he could go home and take care of her.  He wasn't mature enough to remedy the problem in an intelligent way.  
   
   e.  He provided a timeline of his accomplishments from 1978 to 2001.  In 2005, he was in a terrible car accident, spent 2 months in a coma and has been physically disabled since that time.

7.  He also provided a letter from his mother who attests that the applicant (her son) did not desert the Army; he was trying to help his sister.  She stated he was not mature enough to be a Soldier and too young to know how to take care of business.  

8.  His service record does not indicate he applied to the Army Discharge Review Board for a change in his discharge within its 15-year statute of limitations.  

9.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 33 stated members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.  

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

11.  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 shows he had 151 days of lost time and he was subsequently discharged under the provisions of Army Regulation 635-206, section VI, by reason of being convicted or adjudged a juvenile offender by a civil court during his current term of active military service.  

2.  The applicant contends his misconduct was due to his inability to cope with the pressure placed on him and that he was too immature to understand.  However, he was 18 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  

3.  His statements regarding his personal family problems are also acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) which led to his discharge.  His personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.  Further, it does not appear that he was discharged for being AWOL.  It appears he was discharged for being convicted by a civil court.

4.  Although his discharge packet is not available for review, it is presumed the separation authority appropriately directed the issuance of an undesirable discharge based on his overall record of service and the separation action was processed in accordance with the governing regulation.  Accordingly, his service was appropriately characterized as under other than honorable conditions with the issuance of an Undesirable Discharge Certificate.

5.  The available evidence does not show the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting an upgrade of his discharge to either fully honorable or general.

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)                                         AR20130018368



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ABCMR Record of Proceedings (cont)                                         AR20130018368



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