IN THE CASE OF:	  

		BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20150002056 


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 undesirable discharge.

2.  The applicant states he thought the reason he received his discharge was minor and it would do him a lot of good to get an upgrade.

3.  The applicant provides no additional evidence in support of his request.

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 26 December 1972.  After completing his initial entry training, including the Basic Airborne Course, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  
3.  He was assigned to Company C, 3rd Battalion, 325th Infantry Regiment (Airborne), 82nd Airborne Division on 20 June 1973.

4.  He was promoted to the ranks/grades of private/E-2 on 26 April 1973 and private first class/E-3 on 25 June 1973.

5.  His records show he was reported by his unit as absent without leave (AWOL) during the period 15 October 1974 through 11 March 1975.  He was dropped from the rolls of the Army, consistent with this overall period of AWOL service and regulatory provisions in effect at the time.

6.  He was apprehended by civil authorities on 12 March 1975.  Following his apprehension, he was confined by military authorities at the Personnel Control Facility at Fort Ord, California.  He was released from military confinement on   30 June 1975.

7.  He was reported as AWOL on 7 July 1975, he was returned to military control on 8 July 1975, and he was returned to military confinement on 9 July 1975.  He was released from military confinement on 23 July 1975.

8.   He was reported as AWOL and dropped from the rolls of the Army on            9 September 1975, he was returned to military control on 28 November 1975, and he was returned to military confinement on 1 December 1975.

9.  Before a special court-martial at Fort Ord, California, he was convicted of violating Article 86 of the Uniform Code of Military Justice (UCMJ): specifically, absenting himself from his unit, without authority, during the period 9 September 1975 through 27 November 1975.  His sentence, consisting of confinement at hard labor for 1 month and reduction to the rank/grade of private/E-1, was adjudged on 19 January 1976.

10.  He was released from military confinement on 13 February 1976.

11.  He accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ, on 5 March 1976, for absenting himself from unit during the period         27 February through 29 February 1976.

12.  He was confined by civil authorities on 10 March 1976 and he remained confined until he was released and returned to military control on 11 May 1976.

13.  He was confined by military authorities on 9 June 1976 and he remained confined until he was released on 7 July 1976.

14.  He was confined by civil authorities on 3 August 1976 and he remained confined until he was released from civilian confinement and placed on excess leave on 31 August 1976.

15.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his record contains documentation that shows he was pending discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, as early as 26 March 1976. 

16.  His DD Form 214 shows he was discharged on 24 September 1976 in the rank/grade of private/E-1; however, it does not cite an authority or reason for discharge.  His DD Form 214 further shows he received an undesirable discharge after he accumulated 545 days of lost time.

17.  The Army Discharge Review Board (ADRB) considered his petition for a discharge upgrade in March 1983.  In its Case Report and Directive, the ADRB noted the following relevant discussion points based on their review of his available records at the time:

* the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of misconduct – frequent incidents of a discreditable nature with civil or military authorities
* the applicant was notified of his commander's intent to initiate separation proceedings against him on 12 May 1976; the applicant was informed of the rights available to him
* his commander recommended his separation for misconduct on 16 June 1976
* he was afforded the opportunity to meet with counsel, requested consideration of his case by a board of officers, waived personal appearance before a board of officers, declined to submit statements in his behalf, and waived representation by counsel on 9 July 1976
* his case was heard and considered by a board of officers, with counsel present, on 12 August 1976
* the board recommended his separation with an undesirable discharge
* the separation authority approved his undesirable discharge on 26 August 1976

18.  The ADRB concluded his discharge was proper and equitable and denied his petition for an upgrade in his discharge characterization.

19.  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 (emphasis added), (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 an under honorable conditions (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 request for an upgrade of his undesirable discharge was carefully considered.

2.  His record reveals a history of misconduct that included numerous periods of AWOL service, civil and military confinement, nonjudicial punishment, and a special court-martial conviction.  Accordingly, his chain of command initiated separation action against him for misconduct.

3.  The evidence of record shows he was discharged under other than honorable conditions, presumably under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness.

4.  His discharge packet is not available for review in this case; however, his ADRB Case Report and Directive provides sufficient detail about the separation actions taken by his chain of command at the time.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations, with no indication of procedural errors that would have jeopardized his rights.
5.  By his numerous instances of misconduct, the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel in the Army.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory. 

6.  The applicant offers no compelling reasons that mitigate the seriousness of his misconduct.  

7.  In view of the foregoing, there is an insufficient basis to grant relief in this case.
 
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)                                         AR20110023618



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ABCMR Record of Proceedings (cont)                                         AR20150002056



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