IN THE CASE OF:	  

		BOARD DATE:	  8 October 2015

		DOCKET NUMBER:  AR20150003318 


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 discharge under other than honorable conditions to a general discharge.

2.  The applicant states that he was young and not grown up enough to go in the service; however, his brother was drafted and talked him into joining.

3.  The applicant provides no additional evidence.

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 record shows he enlisted in the Regular Army on 11 March 1968 at approximately 18 years of age and he failed to complete his initial entry training.
3.  His record reveals a disciplinary history that included:

* acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 28 to 31 March 1968 
* a special court-martial (SPCM) conviction for being AWOL from 11 to 
19 April 1968 and breaching restraint while undergoing the punishment of correctional custody
* a SPCM conviction for being AWOL from 23 June to 28 August 1968

4.  His record contains a Report of Psychiatric Evaluation, dated 4 October 1968, which shows a military psychiatrist found no evidence of underlying, previously unrecognized, medically disqualifying emotional illness.  He stated the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

5.  A DA Form 1049 (Personnel Action), dated 1 November 1968, shows the applicant‘s commander recommended him for elimination from the service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.  His commander stated that since entering the U.S. Army on 11 March 1968 the applicant had three periods of AWOL, three periods of confinement, had been dropped from the rolls as a deserter, and had two convictions by courts-martial.  Attempts to rehabilitate him were unsuccessful and further rehabilitative efforts would be futile.  The applicant was advised of his right to present his case before a board of officers.  He waived all rights.

6.  On 8 November 1968, the separation authority waived further rehabilitation requirements and directed the issuance of an Undesirable Discharge Certificate.

7.  He was discharged accordingly and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-212 for unfitness.  He completed 
1 month and 9 days of active service with 209 days of lost time.

8.  On 12 September 1972, the ADRB denied his request for an upgrade his discharge.

9.  Army Regulation 635-212 set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6 of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 (Enlisted Separations) provides in:

	a.  Paragraph 3-7a, 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, 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 discharge should be upgraded because he was young and immature.

2.  Records show that the applicant was 18 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's records reveal a period of military service marred by a history of incidents of misconduct that included two court-martial convictions and an extensive period of AWOL.  Accordingly, his chain of command initiated separation action against him.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  He is not entitled to a general or an honorable discharge.

6.  In view of the above, his request should be denied.

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 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)                                         AR20150003318





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ABCMR Record of Proceedings (cont)                                         AR20150003318



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