BOARD DATE:	  11 December 2014

		DOCKET NUMBER:  AR20140005946 


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 undesirable discharge.

2.  He states that he:

* was forced to plead guilty to simple burglary during his court-martial
* received poor or inadequate representation
* had marital problems or issues
* did not receive any marital counseling

3.  He provides no 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 23 January 1973.  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, at the time of separation, he held the rank/grade of private (PV1)/E-1.  He served overseas in Germany for 11 months and 26 days.  He was awarded the National Defense Service Medal.

3.  He was reported absent without leave (AWOL) from his unit on 15 May 1974 and he was dropped from the rolls on 13 June 1974.

4.  On 11 October 1974, the applicant's chain of command was informed that he had been apprehended by civil authorities and was confined in the hands of civil authorities.  Accordingly, he was restored to the rolls and returned to military control at the Personnel Control Facility (PCF), Fort Polk, LA.  He was subsequently transferred to the PCF, Fort Hood, TX.

5.  The applicant was tried before a Special Court-Martial (SPCM) for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 15 May 1974 until 12 September 1974.  He pleaded guilty and was found guilty of the charge.  As a result, he was sentenced to be reduced to the rank/grade of PV1/E-1, to be confined at hard labor for two months, and to forfeit $100.00 pay per month for two months.  On 26 November 1974, the sentence was approved and the applicant was confined in the Area Confinement Facility, Fort Hood, TX.

6.  Following his confinement, the applicant was transferred to the U.S. Army Retraining Brigade, Fort Riley, KS.

7.  On 19 March 1975, the unit commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5 due to unfitness because of frequent incidents of a discreditable nature.  The commander stated the applicant was sent to the brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with improved attitude and motivation.  However, his actions since his arrival precluded accomplishment of the objective as evidenced by his resumption of behavior, attitude, and ability that led to his confinement.  He had demonstrated little desire for returning to duty in spite of receiving considerable counseling by the social workers, members of the leadership team, and unit cadre.  The applicant's documented disciplinary infractions included:

* Burglary
* AWOL
* Possession of contraband
* Improper display
* Failure to comply with standing operating procedures
* Horseplaying/arguing with cadre
* Disobeying orders of noncommissioned officers
* Pass violation
* Missing formation
* Failing to properly prepare for inspection
* Not preparing his bunk
* Sleeping in class
* Hands in pocket at Retreat
* Uniform violation
* Boots not laced
* Violating his shaving profile
* Sleeping in an unauthorized area

8.  On 19 March 1975, the applicant was counseled by a representative of the Judge Advocate General’s Corps regarding the basis of the contemplated separation and its effects, the rights available to him and the effects of a waiver of his rights and he personally and knowingly elected to waive the following rights:

* Consideration of his case by a board of officers
* Personal appearance before a board of officers
* To submit statements in his own behalf
* To be represented by military or civilian counsel

The applicant acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that, as a result of issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He also understood that he could, up until the date the discharge authority directed or approved his discharge, withdraw this waiver and request that a board of officers hear his case.

9.  On 19 March 1975, an intermediate commander recommended approval.  On 21 March 1975, the court-martial convening authority approved the applicant's discharge under the provisions of chapter 13, Army Regulation 635-200 because of unfitness with an undesirable discharge.

10.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant at the time confirms he was discharged accordingly on 24 March 1975. He had completed a total of 1 year, 7 months, and 4 days of creditable active military service and he had 208 days of lost time due to being AWOL and/or in confinement.

11.  The applicant's record is void of any evidence and he did not provide any evidence showing he was experiencing marital strife at the time of his separation or that he requested counseling for such.  Likewise, there is no evidence showing he was coerced to plead guilty to any crime.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge.  On 20 October 1978, The Adjutant General notified the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined that he was properly discharged.  Accordingly, his request for a change in the type and nature of his discharge was denied.

13.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel:

	a.  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. 

	b.  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.

	c.  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 contentions were carefully considered and determined to be without merit.

2.  His record reveals a disciplinary history that includes numerous disciplinary infractions and being tried by SPCM.

3.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, for frequent incidents of a discreditable nature.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally undesirable and the applicant was made aware of this prior to his discharge.

5.  The applicant's record is void of any evidence and he did not provide any evidence showing he was experiencing marital strife at the time of his separation or that he requested counseling for such.  Likewise, there is no evidence showing he was coerced to plead guilty to any crime.

6.  In view of the foregoing, there is no basis for upgrading the applicant's undesirable discharge to either 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)                                         AR20140005946





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ABCMR Record of Proceedings (cont)                                         AR20140005946



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