IN THE CASE OF:  	  

		BOARD DATE:  13 November 2014	  

		DOCKET NUMBER:  AR20140004409 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states:

	a.  He entered the Army 4 days after his 17th birthday.  He would have liked to stay in school but it was not easy growing up in his situation and he felt it was better to quit school during his freshman year and join the military to get away from home.  He completed basic training and advanced individual training (AIT) during which time he adjusted well to the very structured life in the military.  However, after getting assigned to Fort Benning, GA, the military became very challenging to him.  He was young, away from home, and had very little support from his family.  He became homesick and missed his girlfriend and it was difficult being assigned to Fort Benning instead of Fort Hood, TX where he had sought to be assigned after AIT.  

	b.  While assigned to Fort Benning he was arrested and was absent without leave (AWOL) for 2 days and that complicated things back home as he had made plans before entering the service to marry.  He was denied leave and made the decision to go home and get married.  Though he knows these weren't the best decisions, he feels it was a wise choice as he has been married for 46 years.  He asks that the Board consider his age and education at the time he was making these decisions.  Since being discharged he has raised a family and has been happily married.  He has never had another encounter with law enforcement and has worked to provide for his family.  He retired with over 26 years of railroad industry service.  He went to school and obtained his General Educational Development Diploma.

3.  The applicant provides a personal statement and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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.  On 11 January 1967, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he held was private two/pay grade E-2.

3.  On 5 June 1967, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being AWOL from 
3-5 June 1967.

4.  On 29 August 1967, he was convicted by a special court-martial pursuant to his guilty pleas of being AWOL from 1-4 August 1967 and from 5-13 August 1967.

5.  On 25 September 1967, he received NJP for failing to obey a lawful order.

6.  On 9 November 1967, he was convicted by a special court-martial pursuant to his guilty plea of being AWOL from 7-29 October 1967.

7.  On 26 January 1968, he was convicted by a special court-martial pursuant to his guilty plea of being AWOL from 14 November 1967 to 1 January 1968.

8.  On 28 February 1968, he was convicted by a special court-martial pursuant to his guilty plea of being AWOL from 15-19 February 1968.

9.  On 18 September 1968, he was convicted by a special court-martial of being AWOL from 2 August to 7 September 1968.

10.  A Mental Hygiene Consultation Service psychiatric evaluation statement, dated 19 September 1968, shows there were no disqualifying mental defects sufficient to warrant disposition through medical channels and he had the mental capacity to understand and participate in board proceedings. 

11.  On 30 October 1968, the applicant's commander notified him that he had initiated action to separate him from the service for unfitness.  The specific allegations which were the basis for the proposed action were five special courts-martial with a total of 121 days of AWOL. 

12.  On 30 October 1968, he acknowledged that he was advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  He acknowledged he understood if an undesirable discharge under conditions other than honorable were issued to him he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  The applicant then waived his rights.  He did not submit a statement in his own behalf.

13.  On 30 October 1968, his chain of command recommended his discharge from the military under the provisions of Army Regulation 635-212 for unfitness with an undesirable discharge.

14.  On 21 November 1968, the appropriate authority approved the recommendation that the applicant be discharged from the service under the provisions of Army Regulation 635-212 and directed the applicant be furnished an Undesirable Discharge Certificate.

15.  On 29 November 1968, he was given an undesirable discharge under the provisions of Army Regulation 635-212 with a separation program number code of 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities).  His service was characterized as under conditions other than honorable.  His DD Form 214 shows he completed a total of 11 months and 12 days of active military service with seven periods of time lost due to AWOL and confinement.

16.  There is no indication in the available records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 
15-year statute of limitations.

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  It stated an individual was subject to separation for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 contentions were carefully considered.  However, the evidence of record does not support his request for an upgrade of his undesirable discharge.

2.  His age and education level at the time of his enlistment are noted.  However, many Soldiers were enlisted at a young age without graduating from high school and went on to complete their enlistments and receive honorable discharges.  Therefore, these issues cannot be used as a reason to change a properly-issued discharge.

3.  He was discharged under the provisions of Army Regulation 635-212 by reason of unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  His record shows he was given NJP for being AWOL and for disobeying a lawful order.  He was convicted by special court-martial on five occasions for additional offenses of being AWOL.  These frequent instances of indiscipline clearly show he did not meet the standards of acceptable conduct and performance of duty for military personnel.  This misconduct also renders his service unsatisfactory.

4.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  He was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reason for separation were appropriate 




considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

5.  In view of the foregoing, he is not entitled to an upgrade 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)                                         AR20140004409



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ABCMR Record of Proceedings (cont)                                         AR20140004409



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