BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160003397 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160003397 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. BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160003397 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 his under other than honorable conditions discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant states he was late returning from leave and was charged with absent without leave (AWOL), which resulted in him being processed and discharged with an undesirable discharge. He would like to have his record changed due to his youthfulness at the time and to clear his name and status. 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 29 December 1970. At the time of his enlistment, he was almost 20 years old. 3. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: a. On 2 February 1971, at Fort Polk, LA, for being declared AWOL on or about 30 January 1971, and for remaining absent until on or about 2 February 1971. b. On 22 February 1971, at Fort Polk, LA, for failing to go at the time prescribed to his appointed place of duty, to wit: company formation on 21 February 1971. c. On 28 May 1971, at Fort Polk, LA, for being absent from on or about 1830 hours, 27 April 1971, until on or about 2130 hours, 27 April 1971; and additionally, for being AWOL on or about 7 May 1971, and for remaining absent until on or about 22 May 1971. d. On 16 June 1971, at Fort Polk, LA, for breaking restriction on 11 June 1971 and 12 June 1971. 4. Summary Court-Martial Order Number 40, issued by Third Advanced Individual Training (AIT) Brigade, U.S. Army Training Center, Infantry, Fort Polk, LA on 29 July 1971, shows the applicant was found guilty on 26 July 1971 of violating Article 86 of the UCMJ; specifically, he went AWOL from on or about 2 July 1971 through on or about 6 July 1971. His sentence consisted of confinement at hard labor for 30 days and a forfeiture of $51.00 in pay. The sentence was approved and ordered to be executed on 29 July 1971, however, the confinement was suspended for 30 days unless sooner vacated. 5. Summary Court-Martial Order Number 111, issued by Third AIT Brigade, U.S. Army Training Center, Infantry, Fort Polk, LA, shows the applicant was found guilty on 17 September 1971 of violating Article 86 of the UCMJ; specifically, he went AWOL on or about 2 August 1971 until on or about 8 August 1971 and again went AWOL on or about 12 August 1971 until on or about 24 August 1971. His sentence consisted of confinement at hard labor for 30 days and forfeiture of $75.00 pay. The sentence was approved and ordered to be executed on 18 October 1971. 6. The applicant's immediate commander notified him on 10 November 1971, of his intent to initiate separation actions against him in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), paragraph 6a (1), by reason of unfitness. His commander informed him of his rights. 7. The applicant acknowledged notification, consulted with legal counsel, and was advised of the basis for the contemplated separation action, his right to present his case before a board of officers, to submit a statement in his own behalf, and to be represented by counsel. He elected to waive his rights. He also indicated he understood he might expect to encounter substantial prejudice in civilian life by reason of a general discharge under honorable conditions. He also acknowledged he understood he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life as a result of an undesirable discharge under conditions other than honorable. 8. His immediate commander recommended that he be separated from the service under the provision of Army Regulation 635-212, by reason of unfitness, citing his frequent and discreditable incidents with military authorities. He further cited that his misconduct began two months after he entered the service and his four Article 15s and two summary courts-martial convictions, and that he was pending another as reasons for recommending separation. 9. Summary Court-Martial Order Number 126, issued by Headquarters Command, U.S. Army Training Center, Infantry and Fort Polk, Fort Polk, LA on 11 November 1971, shows the applicant was found guilty on 11 November 1971 of violating Article 86 of the UCMJ; specifically, he went AWOL from on or about 18 October 1971 through on or about 26 October 1971. His sentence consisted of confinement at hard labor for 30 days and forfeiture of $95.00 pay. The sentence was approved and ordered to be executed on the same day. 10. The applicant's senior commander recommend approval of his discharge on 24 November 1971, in accordance with Army Regulation 635-212, paragraph 6a (1), by reason of unfitness, and recommended that he be issued an Undesirable Discharge Certificate. The commander also stated that rehabilitation be waived. 11. The separation authority approved his separation action under the provisions of Army Regulation 635-212, directed immediate reduction to private/E-1, and directed the issuance of an Undesirable Discharge Certificate. 12. The applicant was discharged on 16 December 1971. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged under the provisions of Army Regulation 635-212, SPN (Separation Program Number) 28B, by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities. His DD Form 214 further confirms his service was characterized as under other than honorable conditions. He completed 8 months and 23 days of total active service with 85 days of time lost. 13. There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. 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 ABCMR begins its consideration of each case with the presumption of administrative regularity, which is what the Army did was correct. It is not an investigative agency. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-212, in effect at the time, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. a. Action was to be taken to separate an individual for unfitness when, in the commander's opinion, it is clearly established that: despite attempts to rehabilitate or develop him/her as a satisfactory soldier further effort is unlikely to succeed; or rehabilitation is impracticable or he/she is not amendable to rehabilitation measures; or an unfitting medical condition is not the direct or substantial contributing cause of his unfitness. An individual separated by this reason will normally be furnished an undesirable discharge certificate. b. Paragraph 6a provided that an individual was subject to separation for Unfitness when one or more of the following conditions existed: (1) Frequent incident of a discreditable nature with civil or military authorities. (2) Sexual perversion including but not limited to: lewd and lascivious acts; indecent exposure; indecent acts with, or assault upon, a child or other indecent acts or offenses. (3) Drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana. (4) An established pattern of shirking. (5) An established pattern showing dishonorable failure to pay just debts. (6) An established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgements of a civil court concerning support of dependents. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered. 2. The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of Army personnel, as evidenced by his record of indiscipline that included four Article 15s and three convictions by summary courts-martial special courts-martial for being AWOL and his accumulation of 85 days of lost time. Accordingly, his chain of command recommended the applicant’s elimination from the Army. 3. The applicant contends he would like to have his discharge changed due to his youthfulness at the time and to clear his name. He was nearly 20 years of age at the time of his enlistment. 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. His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003397 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003397 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2