IN THE CASE OF:	   

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140008766 


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:

* he entered the Army at the age of 17 with the consent of his parents; his purpose was to serve his country and become a model Soldier
* after initial training he was assigned to Fort Ord, CA and, after 14 months, had been promoted to specialist/E-4
* he learned his girlfriend was pregnant and, because he was not permitted to take leave, on an emotional, immature impulse, he left his place of duty for 15 days to go see her
* he returned to face his punishment; his commander said he would be receiving nonjudicial punishment but received a court-martial instead
* he was sent to the Retraining Brigade at Fort Riley, KS to serve a 2-month sentence
* rather than being allowed to serve out his sentence and return to duty, he was given an under other than honorable conditions discharge
* after his separation he became a model citizen; he never got in trouble, graduated with an Associate's Degree in Business Administration, later graduated with an Electronics Technology degree, and then graduated with honors, receiving a diploma Air Condition Technology
* he feels he was never given a fair chance to be successful in the Army; had he received proper counseling and help to address the issues he was facing he could have been a model Soldier
* he requests an upgrade to an honorable discharge
* he was promoted ahead of his peers and, after making the mistake of going absent without leave (AWOL) he returned to face his punishment
* he realizes he should have known better but acted as he did because a child and possible spouse were involved
* he asks the Board to consider the whole Soldier, not just this incident

3.  The applicant provides:

* self-authored statement
* DD Form 214 (Report of Separation from Active Duty)
* 7 letters of support
* 4 diplomas
* letter from a Technical College

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 22 June 1973, at age 17 with the consent of his parents.  He completed initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while on active duty was specialist four/E-4.

3.  During his term of active service, he was awarded or authorized the National Defense Service Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksmanship Qualification Badge for the M79 (Grenade Launcher).

4.  Available records indicate the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) 


on four occasions:

* on 2 May 1974, for being AWOL for 1 day
* on 26 June 1974, for 3 specifications of failing to go to his appointed place of duty at the time prescribed (failure to repair)
* on 30 October 1974, for failure to repair
* on 20 January 1975, for failure to repair

5.  On 18 April 1975, the applicant was convicted by a special court-martial of one specification of AWOL for the period 17 March 1975 through 2 April 1975.  On 3 April 1975, he was sent to the Retraining Brigade at Fort Riley, KS to serve a 2-month sentence of confinement at hard labor.

6.  On 14 May 1975, the applicant's commander initiated separation action under the provisions of paragraph 13-5a(1) (Unfitness, frequent incidents of a discreditable nature with civil or military authorities), chapter 13 (Separation for Unfitness or Unsuitability), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  As part of his basis, the commander cited frequent acts of a discreditable nature, to include 1 court-martial and 4 instances of nonjudicial punishment.  

7.  On 14 May 1975, the applicant met with counsel and was advised of the basis for the contemplated separation action.  He waived both consideration of his case by, as well as a personal appearance before, a board of officers.  He did not submit statements in his own behalf and waived representation by counsel.  He stated he understood he could encounter considerable prejudice should he receive either a general discharge under honorable conditions or an under other than honorable conditions discharge; to include ineligibility for veterans benefits.  

8.  On 19 May 1975, the separation authority approved the discharge action and directed the applicant receive an under other than honorable conditions discharge.  On 21 May 1975, the applicant was discharged accordingly.

9.  His DD Form 214 confirms he received an under other than honorable conditions discharge.  It shows he was separated under the provisions of Army Regulation 635-200, paragraph 13-5a(1).  It also shows he completed 1 year, 8 months, and 24 days of creditable active service, with 66 days of lost time.

10.  On 12 October 1983, the ADRB denied the applicant's request for upgrade of his discharge.



11.  The applicant provides 7 letters of support which essentially state:

* the applicant is an honest man who has integrity, a sense of responsibility, and good moral character
* he is a dedicated family man, role model, and a valued member of his community
* his academic achievements, hard work, and drive to succeed all serve to make him a person who deserves favorable consideration of his request to upgrade his discharge

12.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13, paragraph 13-5a, establishes policy and prescribes procedures for separating members for unfitness.  Specific categories include frequent incidents of a discreditable nature with civil or military authorities, drug abuse, an established pattern of shirking, and an established patter of failing to pay debts.  The regulation specifies that action will be taken to separate a member for unfitness when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The separation authority may issue an honorable discharge or general discharge if warranted by the overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions of the regulation.

	b.  Paragraph 1-9d 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 1-9e 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 request for upgrade of his under other than honorable conditions discharge was carefully considered, however there was insufficient evidence to support his request.

2.  The evidence of record shows more than just one period of AWOL.  The 4 nonjudicial punishments also demonstrate the applicant continually displayed a lack of self-discipline and inability to conform to military rules.  Accordingly, his chain of command initiated separation action against him.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  His overall record of service shows he displayed an inability to adjust to the regimen of military life or respond to counseling.  Based on his overall record, his service does not meet the standards of acceptable conduct and performance for Army personnel.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20140008766





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ABCMR Record of Proceedings (cont)                                         AR20140008766



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