IN THE CASE OF:	  

		BOARD DATE:	  8 September 2015

		DOCKET NUMBER:  AR20140016512 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states, in effect:

	a.  The error in his record is based on a request [for leave] and the illness of his father during his assignment in Korea.

	b.  He submitted a request for leave, but no one assisted him with his claim.  He needed several contacts to assist with his request for leave and to help contact the proper person by phone.

	c.  He was a protective and respectful child towards his parent and he really didn't understand that he might lose his dad (due to death).  

	d.  His return to base was prolonged; however, he was only 30 miles away on the demilitarized zone in Korea.  He could have talked with the Red Cross. 

	e.  When he found out the condition of his father, he was being sent to Fort Hood, TX and when he did get a chance [to go home], he stayed longer than four days.  

	f.  He had never been away from his parents for a long period of time.  He was confused and didn't want to hear anything else.  Also, he has been suffering from post-traumatic stress disorder and "W.C.S.," meaning white collar stress.  He receives partial social security income and has many disabilities.  
	g.  He loved serving his country.  He volunteered for the Army and asked to serve with the hardest division within infantry.  He was an armored personnel carrier driver for an armored unit.  He wants non-related disability and to see a mental health physician.  With service-related disability, he can get his records from a mental health physician showing his state of mind at the time of discharge.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, discharge proceedings
* DA Form 20 (Enlisted Qualification Record)
* Six DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))

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 19 July 1971.  At the completion of basic combat and advanced individual training, he was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).  He was assigned to Company B, 1st Battalion, 17th Infantry Regiment, 2nd Infantry Division in Korea on 20 December 1971.  

3.  His DA Form 20 shows he performed duties as a gunner, radio telephone operator, personnel carrier driver, and assistant gunner during his assignment in Korea.  He departed Korea on 7 January 1973 and he was reassigned to Fort Hood, TX in February 1973.  


4.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, UCMJ on six occasions for the following offenses:

* being absent from his appointed place of duty on 8 July 1973, 
19 November 1973, and 17 January 1974
* disobeying a lawful order from a noncommissioned officer on 17 July 1973 (twice), 11 January 1974, 20 November 1974 (twice), and 20 March 1974
* failing to go to his appointed place of duty on 11 January 1974
* being absent without leave (AWOL) from 13 December 1973 to 5 January 1974

5.  On 11 March 1974, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200, paragraph 13-5a(4), for unfitness.  He was advised of his rights.  The unit commander recommended discharge due to his habitual shirking by:

	a.  seeking some way to avoid performing his tasks;

	b.  claiming he was unable to perform his tasks due to having a profile.  He accused his first sergeant of destroying his profile when he was told that no profile was in the unit records, his health records, or the Darnall Army Hospital Registrar's Office; 

	c.  failing to report to his place of duty and offering the excuse that he misunderstood or that he went to a different location; and 

	d.  departing AWOL on 13 December 1973 to 5 January 1974.

6.  On 13 March 1974, the applicant consulted with legal counsel and acknowledged he was advised by counsel of the basis of the separation action under Army Regulation 635-200, chapter 13.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, waived representation by military counsel, and did not submit statements in his own behalf.  He acknowledged that he might encounter substantial prejudice in civilian life in the event an undesirable discharge (under conditions other than honorable) was issued to him.  He further understood that he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if an undesirable discharge was issued.

7.  The separation authority waived rehabilitation requirements and directed the issuance of an Undesirable Discharge Certificate.

8.  On 14 May 1974, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(4), for unfitness – an established pattern of shirking with the issuance of an undesirable discharge characterized as under other than honorable conditions.  At the time of his discharge, he had completed 2 years, 9 months, and 2 days of active military service with 24 days of lost time due to being AWOL.

9.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.  

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

11.  Army Regulation 635-200, paragraph 3-7a, states 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.

12.  Army Regulation 635-200, 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.  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 discharge proceedings under the provisions of Army Regulation 635-200, paragraph 13-5a(4) for unfitness, were correct and in conformance with applicable regulations at that time.

2.  The applicant's statements in regard to his father's illness and death and his inability to get assistance to request leave are acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct which led to his discharge.  

3.  The applicant's service record shows he received six Article 15s during his period of active service.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel

4.  The applicant's contention that he has been suffering from post-traumatic stress disorder is acknowledged.  However, the evidence of record does not include any medical documentation to substantiate his claim.

5.  There is no evidence of record which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his 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)                                         AR20140016512





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ABCMR Record of Proceedings (cont)                                         AR20140016512



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