IN THE CASE OF:	  

		BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20140014122 


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 (UOTHC) discharge.

2.  The applicant states:

   a.  He was young and immature and really did not understand the situation or the weight the characterization of his discharge would carry for the rest of his life.
   
   b.  He could not follow orders well enough and remained home beyond his leave period resulting in his absent without leave (AWOL) status.
   
   d.  He returned from AWOL to duty, completed his initial entry training, and later married a girl who would sleep around on him while he would go to training.
   
   e.  He tried to hang in there, but his wife's infidelity and pregnancy by another man affected his job performance and ultimately led to his UOTHC discharge.

3.  The applicant provides:

* self-authored statement
* three character reference statements
* DD Form 214 (Report of Separation from Active Duty)



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's record shows he enlisted in the Regular Army (RA) on 
20 September 1972.  He was trained in, awarded, and served in military occupational specialty (MOS) 13A (Field Artillery Crewman).  

3.  His DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions) that he twice attained the rank/grade of private (PV2)/E-2 on 24 November 1972 and 12 May 1973, and that this was the highest rank he attained while serving on active duty.  It also shows that he was twice reduced to the rank/grade of private (PV1)/E-1 on 12 January 1973 and 
28 August 1973.

4.  The applicant's record documents no acts of valor or significant achievement. It reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL eight times on the dates shown during the periods indicated:

* 10 January 1973 (2 – 10 January 1973)
* 29 January 1973 (16 – 23 January 1973)
* 12 April 1973 (9 – 11 April 1973)
* 27 June 1973 (29 May – 21 June 1973)
* 28 August 1973 (10 – 11 August and 16 – 17 August 1973)
* 10 December 1973 (20 – 30 November 1973)
* 15 February 1974 (failing to go at the time prescribed to his appointed place of duty on 5 February 1974)
* 5 August 1974 (6 – 12 June 1974)


5.  The applicant's record does not include a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, it does include a duly-constituted DD Form 214 confirming the authority and reason for his separation.  The DD Form 214 reports the applicant was discharged on 2 October 1974, with a UOTHC characterization of service under the provisions of paragraph 13-5a(1), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He was issued a DD Form 258A (Undesirable Discharge Certificate).  It also shows he completed a total of 1 year, 9 months and 13 days of creditable active military service and he accrued 93 days of time lost.

6.  There is no evidence of record to show the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

7.  The applicant provides three character references from individuals who attest that he is:

* a faithful employee, husband, father, and grandfather
* a community activist who is committed to whatever the cause
* a leader who is quick to learn and is an excellent teacher
* a person who believes in justice and executes the same

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

   a.  Chapter 13, in effect at the time, provided the authority for the separation of enlisted personnel for various acts of misconduct which included patterns of misconduct (frequent incidents, shirking, failure to pay just debts, failure to support dependents, and unsatisfactory performance.)  An undesirable discharge was normally appropriate for members discharged for misconduct; however, the separation authority could grant a general, under honorable conditions discharge (GD) or honorable discharge (HD) if warranted by the member's overall record of service.

   b.  Paragraph 3-7a provides that an HD is a separation with honor.  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 inappropriate.

   
c.  Paragraph 3-7b provides that a GD 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends that his UOTHC discharge should be upgraded because he was young and immature and really did not understand the lasting effects of the characterization of his discharge.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The record is void of a discharge packet containing the specific facts and circumstances concerning the events that led to the applicant’s discharge.  However, there is a properly-constituted DD Form 214 that identifies the authority and reason for his discharge and this document carries with it a presumption of government regularity in the discharge process.  Lacking evidence to the 
contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement. However, it does reveal a disciplinary history that includes his acceptance of NJP on eight separate occasions for AWOL offenses totaling 93 days.  As a result, his record was not sufficiently meritorious to support the issuance of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade now.

4.  In view of the foregoing, there is no 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)                                         AR20140014122



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ABCMR Record of Proceedings (cont)                                         AR20140014122



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