IN THE CASE OF:	  

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140018011 


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 to a general discharge.

2.  The applicant states he was a good Soldier until he got into the wrong crowd.  He is much older now, very ill, and he does not want to die with a bad discharge.

3.  The applicant provides no documentary evidence in support of his application.

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 8 June 1973 for a period of 
3 years.  Upon completion of training he was awarded military occupational specialty 94B (Cook).
3.  He received nonjudicial punishment (NJP) for:

* being absent without leave (AWOL) on two occasions:

* from 5 January to 8 January 1974
* from 11 March to 24 March 1974

* on 8 July 1974:

* willfully disobeying a lawful order
* failing to go to his appointed place of duty

4.  On 21 March 1974, the Commander, 1st Squadron (Air), 17th Cavalry, Fort Bragg, NC, approved a bar to reenlistment against the applicant based on his substandard appearance and poor attitude, writing bad checks, and record of NJP for being AWOL.

5.  On 5 February 1975, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86 (two specifications), for being AWOL from:

* 19 October 1974 to 10 November 1974
* 11 December 1974 to 31 January 1975

6.  On 7 February 1975, the applicant's commander notified him that he was initiating action to discharge him under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unfitness due to his repeated incidents of misconduct.  The applicant was advised of his rights and the separation procedures involved.

7.  The applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

	a.  He waived consideration of his case by a board of officers.

	b.  He waived a personal appearance before an administrative separation board.

	c.  He indicated that he would not submit statements in his own behalf.

	d.  He acknowledged that military legal counsel for consultation was available to assist him; however, he waived representation by counsel.
	e.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him.

	f.  He acknowledged he understood that if he received an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.

	g.  The applicant and consulting counsel placed their signatures on the document.

8.  The chain of command recommended approval of the applicant's separation action.

9.  The separation authority approved the commander's recommendation for discharge of the applicant for unfitness with the issuance of an Undesirable Discharge Certificate.

10.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 24 March 1975 UP AR 635-200, paragraph 13-5a, with service characterized as under conditions other than honorable.  He completed 
1 year, 6 months, and 17 days of creditable active service and he had 89 days of time lost.

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

12.  AR 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.

   a.  Chapter 13, in effect at that time, provided for separation of enlisted members found to be unfit or unsuitable for further military service.  Separation action would be taken when, in the commander's judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unfitness under this regulation was characterized as undesirable, except that an honorable or under honorable conditions discharge could be issued if warranted by the particular circumstances in the Soldier's case.


	b.  Chapter 3, 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. 	Chapter 3, 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 contends that his under other than honorable conditions discharge should be upgraded to a general discharge because he got into the wrong crowd, he is much older now and he is very ill, and he does not want to die with a bad discharge.

2.  The applicant's discharge UP AR 635-200, chapter 13, for unfitness based on repeated incidents of misconduct was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  Considering all the facts of this case, the reason for his separation and characterization of discharge were appropriate and equitable.

3.  During the period of service under review the applicant received NJP on three occasions for various violations of the UCMJ, he was barred from reenlistment, he had four periods of AWOL totaling 89 days of lost time and he completed only about one-half of his 3-year service obligation.  Thus, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

4.  The applicant's contentions were also carefully considered; however, they are insufficient as a basis for upgrading the characterization of his discharge.

5.  In view of the foregoing, there is an insufficient 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)                                         AR20140018011



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ABCMR Record of Proceedings (cont)                                         AR20140018011



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