BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20140019246 


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 under other than honorable conditions discharge.

2.  The applicant states there was no error or injustice in the reason for the discharge.  He was a 17-year old kid who had never been away from home.  He went absent without leave (AWOL) on several occasions because he was homesick. 

3.  The applicant provides three character reference letters and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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 records show he was born in January 1954 and enlisted in the Regular Army at 18 years of age on 9 March 1972.  He completed the training requirements and he was awarded military occupational specialty 76Y (Armorer Unit Supply Specialist).  

3.  On 24 August 1972, while still in training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 11 to 23 August 1972.  

4.  Following completion of training, he was assigned to the Overseas Replacement Station, U.S. Army Personnel Center, Oakland, CA for forward movement to the U.S. Army Pacific.  However, he left in an AWOL status on 12 November 1972 and ultimately returned to military control on 29 December 1972.  

5.  On 4 January 1973, at Headquarters, Troop Command, Oakland, CA, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 12 November to 29 December 1972.  His punishment consisted of a reduction to E-1 and a forfeiture of pay. 

6.  He was reassigned to Headquarters, 76th Engineer Battalion (Construction), Fort Meade, MD.  While there, on 14 February 1973, he again accepted NJP under the provisions of Article 15 of the UCMJ for absenting himself from his appointed place of duty without authority on 9 February 1973. 

7.  On 21 May 1973, he was convicted by a summary court-martial of two specifications of being AWOL from 23 to 29 March 1973 and from 2 to 12 April 1973.  The court sentenced him to 30 days of hard labor without confinement and a forfeiture of pay.  The convening authority approved his sentence on 21 May 1973.  

8.  On 20 June 1973, he accepted NJP under the provisions of Article 15 of the UCMJ for leaving his post as a member of the arms room guard without authority. 

9.  On 14 September 1973, he was again convicted by a special court-martial of one specification of being AWOL from 30 July to 7 August 1973.  The court sentenced him to confinement at hard labor for 3 months, a forfeiture of pay, and reduction to the lowest enlisted grade.  The convening authority approved his sentence on 18 October 1973. 


10.  On 13 December 1973, 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.  Specifically, the immediate commander cited the applicant's:

* extensive history of negative counseling
* history of being AWOL
* multiple violations of the UCMJ 
* possession of contraband
* unsatisfactory behavior rating 
* failure of any and all rehabilitative efforts

11.  On 13 December 1973, 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 on his own behalf.  He acknowledged that:

* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was 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

12.  Following the applicant's acknowledgement, his immediate commander initiated action to separate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 due to unfitness.  The commander opined the applicant was unfit because of established pattern of shirking, complete disregard for military authority, lack of ability to become an effective Soldier, and failure to respond to counseling or rehabilitative efforts.   The applicant's intermediate commander recommended approval of the discharge action. 

13.  On 17 December 1973, the separation authority approved the discharge action under the provisions of Army Regulation 635-200, chapter 13, and ordered the applicant discharged with the issuance of an Undesirable Discharge Certificate.  The applicant was discharged accordingly on 18 December 1973.  

14.  His DD Form 214 shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness with service characterizes as under other than honorable conditions and with an Undesirable Discharge Certificate.  He completed 1 year, 4 months, and 2 days of creditable active military service and he head 158 days of lost time. 

15.  On 15 June 1978, after he failed to respond to the notification letter of a hearing in May 1978, the Army Discharge Review Board (ADRB) conducted a record review of his discharge processing but found it proper and equitable.  The ADRB denied his petition for an upgrade of his discharge. 

16.  He provides three character reference letters as follows: 

	a.  In a letter, dated 8 July 2014, the author identifies himself as the applicant's case manager for the past 6 months and states he has witnessed his behavior and character on a daily basis.  He has worked tirelessly on his goals and found ways to accomplish them.  He is a cooperative, generous, and motivated individual.  It would benefit him to have his discharge upgraded.  

	b.  In a letter, dated 11 July 2014, an administrative assistant states she has known the applicant for the past 10 months.  She describes him as courteous and respectful.  He is motivated to transition to permanent housing and despite financial obstacles, he has remained positive.  

	c.  In a letter, dated 19 July 2014, a senior pastor states he supports the applicant's request to upgrade his discharge.  He describes the applicant as a courteous, respectful, and moral individual.  He is involved in the church and despite his setbacks he remains motivated, skillful, thoughtful, and positive.  

17.  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 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 records reveal an extensive history of misconduct that included four instances of NJP, multiple instances of being AWOL, two court-martial convictions, and a history of negative counseling.  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 by reason of unfitness.

2.  The evidence of record shows 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.  The applicant was 18 years of age at the time of his enlistment and between 19 and 20 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

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.  Based on the available evidence, it would not be appropriate to upgrade 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)                                         AR20140019246



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ABCMR Record of Proceedings (cont)                                         AR20140019246



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