IN THE CASE OF:  	  

		BOARD DATE:  18 December 2014	  

		DOCKET NUMBER:  AR20140006817 


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 to honorable.

2.  The applicant states the circumstances were beyond his control.

3.  The applicant provides a copy of 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.  The applicant enlisted in the Regular Army on 25 April 1972 for 3 years.  He completed his training and awarded military occupational specialty 71B (clerk typist).

3.  On 20 July 1973, he was convicted by a special court-martial of failing to repair (two specifications), violating a lawful regulation (possessing hashish), violating a lawful regulation (operating an unregistered, uninsured vehicle without a valid driver's license), leaving the scene of an accident, and being absent without leave from 15 June 1973 to 20 June 1973.  He was sentenced to confinement at hard labor for 3 months, a forfeiture of $170.00 pay for 3 months, and reduction to E-1.  On 1 August 1973, the convening authority approved the sentence, but suspended confinement in excess of 2 months for 6 months.

4.  His résumé of discreditable acts shows the following:

* 14 August 1973 – refused to train
* 16 August 1973 – failed to prepare for inspection
* 17 August 1973 – failed to follow instructions
* 21 August 1973 – smoked in dining facility
* 28 August 1973 – left formation without permission
* 29 August 1973 – disobeyed a lawful order, failed to prepare for inspection, found in an off-limits area, refused to train, and disobeyed a lawful order
* 4 September 1973 – refused to train

5.  On 21 September 1973, his unit commander initiated action to separate him for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, due to involvement in frequent incidents of a discreditable nature with civil or military authorities.

6.  On 21 September 1973, after consulting with counsel and being advised of his recommended discharge for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

7.  On 26 September 1973, the separation authority approved the recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate.

8.  On 27 September 1973, the applicant was discharged under other than honorable conditions for unfitness under the provisions of Army Regulation
635-200, chapter 13, due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 3 months, and 12 days of total active service with 51 days of lost time.

9.  There is no evidence in the available records that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

	a.  Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.

	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 contention that the circumstances were beyond his control was noted.  However, there is no evidence of record and he provided no evidence to support this contention.

2.  His record of service included numerous discreditable acts, one special court-martial conviction, and 51 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to an honorable or a general discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20140006817



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ABCMR Record of Proceedings (cont)                                         AR20140006817



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