IN THE CASE OF:	  

		BOARD DATE:	  7 October 2014

		DOCKET NUMBER:  AR20140002661 


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 that his under other than honorable conditions discharge be upgraded to general, under honorable conditions.  

2.  The applicant states he was in retraining at Fort Riley, KS and within two weeks he was assigned as a platoon leader.  He contends that his glove fell out of his jacket and he went back to the mess hall to see if he could retrieve it.  He was then reported absent without leave (AWOL).  He is 60 years old now and he would appreciate a better discharge.

3.  The applicant did not provide 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 21 June 1974.  He was reassigned to Germany upon completion of initial entry training.  

3.  He accepted nonjudicial punishment (NJP) on:

	a.  12 December 1974 for being incapacitated for the proper performance of his duties as a result of previous indulgence of an intoxicant;  

	b.  23 April 1975 for failing to go at the time prescribed to his appointed place of duty and for violating a lawful general regulation by having in his possession a knife longer than 3 inches;

	c.  11 November 1975 for wrongful appropriation of an automobile and for wrongfully and unlawfully making a false statement under oath; and on 

	d.  21 June 1976 for sleeping while being posted as a sentinel and for leaving his post before he was properly relieved while being posted as a sentinel.

4.  On 3 November 1976, he was found guilty by a special court-martial of being AWOL during the period 16-27 September 1976.  

5.  On or around 26 November 1976, he was reassigned to the U.S. Army Retraining Brigade (USARB), Fort Riley, KS.  

6.  His record includes several Correctional Progress Notes that show his performance while assigned to the USARB was described as unsatisfactory due to acts of misconduct that included shirking, possession of marijuana, sleeping on duty, and disobeying lawful orders.  

7.  On 21 January 1977, his commander recommended his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for misconduct/unfitness due to frequent incidents of a discreditable nature.  The commander stated that after the applicant received NJP on four occasions and a court-martial conviction, he was sent to the USARB for the purpose of receiving correctional training and treatment necessary to return him to duty.  However, his actions since his arrival precluded accomplishment of the objective as evidenced by his resume of behavior and attitude.

8.  The applicant consulted with legal counsel and was advised of the basis for the proposed separation action.  He was also advised of his right to request consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He elected consideration of his case by a board of officers.  He also acknowledged he understood that as a result of the issuance of a discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.

9.  On 9 February 1977, a board of officers convened to determine whether the applicant should be discharged before the expiration of his term of service because of misconduct.  The board concluded the applicant should be eliminated from the service for misconduct with issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The board based their recommendation on the applicant's court-martial conviction, NJP on four occasions, and numerous discreditable incidents recorded by his cadre at the USARB.  

10.  On 16 February 1977, the appropriate authority approved the recommendations of the board of officers and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 17 February 1977, he was discharged accordingly.  His DD Form 214 (Report of Separation for Active Duty) shows he completed 2 years, 3 months, and 3 days of creditable active service and that he accrued 144 days of lost time.  

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  

	a.  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. 

	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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge to general, under honorable conditions has been carefully considered.
2.  The evidence of record confirms his separation processing for unfitness was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

3.  His disciplinary history includes NJP on four occasions, a court-martial conviction, several acts of misconduct while assigned to the USARB, and 
144 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  His misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to a general, under honorable conditions discharge.

4.  Based on the foregoing, there is no basis to grant 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)                                         AR20140002661



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ABCMR Record of Proceedings (cont)                                         AR20140002661



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