IN THE CASE OF:	  

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20130021166 


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. 

2.  The applicant states, in effect, upon his release from the Army at Fort Knox he was told his discharge would be upgraded to an honorable discharge after
6 months.  He served faithfully in Vietnam, but due to stress he went absent without leave (AWOL).  He just could not handle the stress.  He was young at the time and he regrets his mistake.  

3.  The applicant does not provide any 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's records show he was born in November 1952.  At age 18, on 19 February 1971, he enlisted in the Regular Army.  He was trained in and held military occupational specialty 13A (Field Artillery Basic).  

3.  He served in Germany and he also served in Vietnam from 8 May 1971 to
4 March 1972.  He was awarded or authorized the Vietnam Service Medal with two campaign credits, Vietnam Campaign Medal with 1960 Device, and Army Commendation Medal. 

4.  On 18 March 1971, in Germany, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for damaging by reckless operation, two military vehicles. 

5.  On 18 April 1972, he departed his Fort Hood, TX unit in an AWOL status.  He returned to military control on 9 May 1972.  However, on 12 May 1972, he again departed his unit in an AWOL status and on 18 May 1972, he was dropped from the rolls as a deserter.  He returned to military control on 29 July 1972.

6.  On 11 August 1972, his chain of command preferred court-martial charges against him for two specifications of being AWOL from 18 April to 9 May 1972 and 12 May to 29 July 1972. 

7.  On 21 August 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.   He submitted a statement wherein he described his childhood and the challenges he had at home prior to joining the military, talked about his Article 15, indicated that people were always trying to get him to do things he did not want to do, and that he did not want to go back to duty.  He threatened to go AWOL again, insisted on getting out, and indicated he did not care how he got out.

8.  His immediate, intermediate, and senior commanders recommended disapproval of the discharge action.  The company commander indicated the applicant's conduct and efficiency ratings were not acceptable.  

9.  On 28 August 1972, the separation authority indicated he had reviewed the request for discharge for the good of the service and determined his request will not be accepted.  

10.  On 8 September 1972, the applicant was convicted by a special court-martial of two specifications of AWOL from 18 to 9 May 1972 and 12 May to 29 July 1972.  The court sentenced him to hard labor without confinement for 30 days, restriction, and reduction to E-1.  The convening authority approved his sentence on 18 September 1972. 

11.  On 10 September 1972, he again departed his unit in an AWOL status and on 9 October 1972, he was dropped from the rolls as a deserter.  He surrendered to military authorities at Fort Knox, KY on 30 December 1972.  

12.  The complete facts and circumstances surrounding the applicant’s discharge processing are not available for review with this case.  However, his record contains the following documents:

	a.  Special Orders Number 22, issued by Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center, Fort Knox, KY, on 2 January 1973, directing the applicant's discharge from the Army effective 6 February 1973 in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) with an under other than honorable conditions discharge by reason of unfitness.

	b.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 6 February 1973 under the provisions of chapter 13 of Army Regulation 635-200 (Separation Program Number 28B (unfitness)), with an under other than honorable conditions discharge.  This form also shows he completed 1 year, 3 months, and 11 days of creditable active service and he had 251 days of lost time.

13.  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 limitation.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contained the 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.  This regulation prescribed that an undesirable discharge, characterized as under other than honorable conditions, was normally issued unless the particular circumstances warranted an honorable or a general discharge.

	a.  Paragraph 3-7a provides that 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 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 record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 6 February 1973 under the provisions of chapter 13 of Army Regulation 635-200 for unfitness with an under other than honorable conditions discharge.

2.  The applicant's records reveal an extensive history of misconduct that included one instance of NJP, an extensive history of AWOL, and a court-martial conviction.  It appears his chain of command initiated separation action against him and it was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights. 

3.  The discharge proceedings were presumably 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 characterization of service both are presumed to be proper and equitable.

4.  The applicant was 18 years of age at the time of his enlistment and between 19 and 20 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 their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

5.  There is no evidence in the applicant's records and he provides none to support his contention his misconduct was caused by stress.  He was discharged because he was unfit for military service.  

6.  Based on his extensive record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20130021166



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ABCMR Record of Proceedings (cont)                                         AR20130021166



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