IN THE CASE OF:	  

		BOARD DATE:	  30 July 2015

		DOCKET NUMBER:  AR20140019936 


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 upgrade of his other than honorable conditions discharge.

2.  The applicant states that at the age of 17 he could not appreciate nor could he handle the responsibilities of being in the Army.  He feels his actions were due to his immaturity, and being unloved during his childhood.  His discharge is not indicative of who he is today. 

3.  The applicant provides a cover letter from the county Veterans Service Commission, a copy of his DD Form 214 (Report of Transfer or Discharge) and two character reference letters.

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.  On 3 October 1966, the applicant enlisted in the Regular Army for 3 years.  He was 17 years old and had completed 1 year of high school.  He completed basic training at Fort Knox, Kentucky but never finished advanced individual training.

3.  Special court-martials convicted him of absence without leave (AWOL) from 1 February to 14 April 1967 and from 20 May to 23 August 1967.  

4.  On 25 September 1967 the unexecuted portion of the sentence to confinement from the second court-martial was ordered remitted effective the date of his administrative discharge. 

5.  No separation packet is contained in the available records.  However, on 26 September 1997 the applicant was ordered separated for unfitness.   

6.  His 2 October 1967 DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge for Unfitness and Unsuitability) due to frequent incidents of a discreditable nature and his service was characterized as having been under conditions other than honorable.

7.  The character reference letters submitted in support of this request reflect that:

a.  A retired U.S. Air Force master sergeant writes that – 

* since the age of 10, he has known the applicant
* he thought when the applicant joined the Army he was immature for his age
* the applicant came from a close knit family and couldn’t adapt to being away from them or to the Army
* the applicant has never been in trouble with drinking or drugs
* he still loves to go to church
* The applicant constantly tells him how ashamed he is of the discharge and how much an upgraded discharge would mean to him

b.  Ms. Elizabeth W____ writes – 

* she has known the applicant for 37 years
* he has always been truthful to her and others
* when he joined the Army he was very young, his family was close and being away was difficult
* she knows that he has lived a God fearing life and his only regret is that he didn’t get a favorable discharge
* she knows the applicant has never asked for anything else from anyone

8.  There is no available evidence that the applicant applied to the Army Discharge Review Board within the 15 year period of eligibility.
 
9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a stated an individual was subject to separation for unfitness for one or more of several situations including frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  

   a.  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.

   b.  Paragraph 3-7b states 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.  
   
11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of the applicant’s upstanding post-service behavior and conduct is noted but it is not so exceptionally meritorious as to significantly mitigate the behavior that led to the discharge.  

2.  Admittedly the applicant was only 17 years old when he enlisted and his supporters describe how difficult it was for him to be away from his family.  However, he completed basic combat training; perhaps the most stressful of all a Soldier’s experiences short of actual combat; yet, he did not go AWOL until the beginning of his second month of advanced individual training.  Thus by completing basic combat training he had demonstrated he was neither too young nor too immature to serve honorably.  

3.  Although the applicant's separation packet was not available for review, it is presumed that the Army's administrative processing of the applicant’s discharge is correct.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement. 

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case that included two extended periods of AWOL for which he was court-martialed.

5.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's 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)                                         AR20140019936



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ABCMR Record of Proceedings (cont)                                         AR20140019936



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