BOARD DATE:	  31 July 2014

		DOCKET NUMBER:  AR20130020503 


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, in effect, that his undesirable discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states that he had a conflict with a lieutenant over his girlfriend and two marijuana cigarettes.  At the time it was not his, but he agreed to accept the charge to protect another serviceman, not knowing the conditions that would affect him for the rest of his life.  Right now, he is willing to fight for his country at any time.  He was a young teenager and did not understand the damage that would be inflicted.  Now, he is old, disabled and would like to see this injustice fixed during the years that he has left.

3.  The applicant provides no documentary evidence in support of his request.

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's record shows he was born on 6 June 1955 and he enlisted in the Regular Army on 11 September 1972 at the age of 17 years, 3 months and 6 days.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty (MOS) 63F (Recovery Specialist).  The highest rank/pay grade he attained while serving on active duty was private (PV2)/E-2.  However, at the time of separation he held the rank/pay grade of private (PVT)/E-1.

3.  The applicant's record reveals a disciplinary history that includes being found guilty by a summary court-martial of violating Article 86 of the Uniform Code of Military Justice (UCMJ) for departing his unit in an absent without leave (AWOL) status on or about 23 August 1973 and remaining so absent until on or about 26 November 1973.

4.  The applicant's record also reveals his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on three occasions for committing the following offenses in violation of the Articles of the UCMJ indicated:

* Article 86, on two occasions for going AWOL
* Article 113, for leaving his sentinel post before being regularly relieved
* Article 92, for wrongfully having in his possession an undetermined amount of marijuana

5.  The complete facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) which shows he was discharged from the Army on 18 April 1974.  This document shows he completed 1 year and 4 months of creditable active duty service and 98 days of time lost.  His DD Form 214 also shows in blocks 9a - 9f that he was discharged under the provisions of paragraph 13-5a(1) (Misconduct); chapter 13 of Army Regulation 635-200 (Personnel Separations), with separation program designator code 28B (Unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities); that he received an "Under Other Than Honorable Conditions" characterization of service; and he was issued a DD Form 258A (Undesirable Discharge Certificate).

6.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 

8.  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 applicant's contention that his discharge should be upgraded was carefully considered and determined to lack merit.

2.  Records show the applicant was 18 and 19 years of age at the time of his offenses.  However, 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.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow him to remain on active duty and continue to serve.  Evidence indicates the applicant was not responsive to the rehabilitative efforts of his command.

4.  The evidence clearly shows he had 98 days of time lost.

5.  The evidence of record indicates he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his undesirable discharge 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)                                         AR20130020503





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ABCMR Record of Proceedings (cont)                                         AR20130020503



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