IN THE CASE OF:	  

		BOARD DATE:	  22 January 2014

		DOCKET NUMBER:  AR20140009306 


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 reconsideration of his earlier request for an upgrade of his undesirable discharge.

2.  The applicant states he did not realize he was getting a dishonorable discharge at the time.  He did not have a clue of what he was doing. He was young and uninformed. 

3.  The applicant does not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC77-02819, on 17 August 1977.

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his request was neither received within 1 year of the original Board's decision nor does it contain new evidence.  However, the previous Record of Proceedings did not fully explain the difference between an honorable and a general characterization of service or explain why the applicant did not meet the criteria for either characterization.  Therefore, as a one-time exception to policy, his request will be reconsidered by the Board.


3.  The applicant's records show he was born in October 1956 and enlisted in the Regular Army at 17 years of age on 24 October 1973.  He was assigned to Fort Knox, KY for completion of training in military occupational specialty 11E (Armor Crewman). 

4.  His records reveal an extensive history of negative counseling, including multiple instances of being absent without leave (AWOL), multiple instances of failing to repair and breaking restriction, shirking of duty and apathy, and unsatisfactory performance. 

5.  On 15 March 1974, he departed his unit in AWOL status.  He returned to military control on 19 March 1974.  Following his return, on 20 March 1974, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL. 

6.  On 25 March 1974, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty on 22 March and failing to go at the time prescribed to his appointed place of duty on 24 March 1974. 

7.  On 15 April 1974, he again accepted NJP under the provisions of Article 15 of the UCMJ for twice failing to go to his appointed place of duty on 13 and 14 April 1974. 

8.  On 4 June 1974, he departed his unit in an AWOL status and on the same day, he was dropped from the Army rolls as a deserter.  He returned to military control on or about 19 June 1974. 

9.  On 31 July 1974, he was convicted by a special court-martial of two specifications of AWOL from 22 April to 18 May 1974 and 4 to 18 June 1974.  The court sentenced him to a forfeiture of pay and confinement at hard labor for 30 days.  The convening authority approved his sentence on 22 August 1974. 

10.  On 16 December 1974, he accepted NJP under the provisions of Article 15 of the UCMJ for twice failing to go to his appointed place of duty on 10 December 1974.

11.  On 21 January 1975, the applicant's immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to unfitness. The immediate commander requested a waiver of any further requirements for counseling or rehabilitative transfer because prior attempts had failed.
12.  On 21 January 1975, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for unfitness.  The applicant waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He further elected not to submit a statement in his own behalf.  In conjunction with his counseling, he acknowledged that: 

* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he may encounter substantial prejudice in civilian life

13.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under the provisions of chapter 13 of Army Regulation 635-200.  He listed his extensive history of misconduct, including his habitual AWOL, failure to repair, and shirking/apathy. 

14.  On 27 January 1975, his intermediate commander recommended approval and a waiver of the rehabilitation efforts.  He stated the applicant had shown he is unwilling to be a satisfactory Soldier as evidenced by his frequent acts of misconduct and repeated shirking of his military duties.  He failed to respond to counseling and showed an indifferent attitude to his duties, appearance, responsibilities, and the Army.

15.  On 30 January 1975, his senior commander also recommended approval of the discharge action and waiver of any rehabilitative efforts.  He remarked that the applicant had displayed an unwillingness to upgrade himself to satisfactory performance.

16.  Consistent with the chain of command recommendations, on 27 February 1975, the separation authority approved the applicant's discharge under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness and ordered the issuance of an Undesirable Discharge Certificate.  The applicant was discharged accordingly on 13 March 1975. 

17.  On the date of his discharge, the applicant acknowledged he understood the narrative reason for his separation, the authority for his separation, and his reentry code. 

18.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with a an under other than honorable conditions character of service and he was issued an Undesirable Discharge Certificate.  He completed 1 year and 2 days of creditable active military service and he had 137 days of lost time.

19.  On 1 June 1982, the Army Discharge Review Board reviewed his discharge but found it proper and equitable.  It denied his request for an upgrade of his discharge. 

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

	a.  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.

	b.  Paragraph 3-7b states 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 records reveal an extensive history of misconduct that included four instances of NJP, multiple instances of AWOL, and a court-martial conviction.  He was provided counseling and/or multiple opportunities for rehabilitation by various members of his chain of command, but he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

3.  Although the applicant was 17 years of age at the time of his enlistment, there is no evidence in his records that shows his misconduct was caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their term of service. 

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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 to amend the decision of the ABCMR set forth in Docket Number AC77-02819, on 17 August 1977.



      ___________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)                                         AR20140009306



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ABCMR Record of Proceedings (cont)                                         AR20140009306



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