IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100029916


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 discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, he was never permitted to defend himself in court against charges brought against him in an Article 15.  Specifically, he relates he was charged with:

* failure to go to the field when he should have been on sick call
* hitting a Soldier who hit him 

3.  The applicant provides a statement.

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 for 3 years on 27 February 1970.  He completed basic combat training at Fort Polk, LA, infantry advanced individual training at Fort Ord, CA, and he was transferred to Vietnam.

3.  The applicant arrived in Vietnam on or about 15 September 1970 and was assigned to Company B, 4th Battalion, 21st Infantry, 11th Brigade, 23rd Infantry Division (Americal).  He departed Vietnam on or about 20 June 1971.

4.  The applicant returned to the United States and he was assigned to the 11th Infantry Regiment, Fort Carson, CO.

5.  The applicant's Military Personnel Records Jacket (MPRJ) contains partial records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for the following reasons:

	a.  while in Vietnam, for failure to go to guard duty on 5 and 6 April 1971, and behaving with disrespect towards a superior commissioned officer on 6 April 1971;

	b.  at Fort Carson, for communicating a threat to a fellow Soldier on 8 August 1971, wrongfully appropriating 63 cents from a fellow Soldier on 9 August 1971, communicating a threat by striking a fellow Soldier in the chest with the intent to obtain 20 cents on 9 August 1971, and being drunk and disorderly on 9 August 1971;

	c.  at Fort Carson, for disobeying a lawful order from a noncommissioned officer on 8 October 1971;

	d.  at Fort Carson, for falsely stating he had enrolled in General Educational Development (G.E.D.) classes and being absent from his unit on 12, 18, 21, 22, and 23 February 1972;

	e.  at Fort Carson, for committing uniform violations at a pre-battalion command reveille formation on 31 May 1972; and

   f.  for willfully disobeying a lawful order to perform guard duty on 21 October 1979 and being disrespectful in language towards a staff sergeant on the same date.

6.  The applicant's MPRJ contains a DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Convictions).  It shows he was convicted by a special court-martial for disobeying a lawful order of a commissioned officer on or about 1 November 1970.
7.  The applicant's separation packet is not contained in his MPRJ.  Medical examination documents dated 12 July 1972 indicate he was being medically evaluated for separation under Army Regulation 635-212.  The applicant's 
DD Form 214 indicates he was discharged with separation program number (SPN) 28B.  This SPN code refers to a discharge for unfitness under paragraph 13-5a(1) of Army Regulation 635-200 by reason of unfitness.

8.  The applicant was issued an undesirable discharge on 16 January 1973.

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 of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents 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 on a child; (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 of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure 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 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time superseded Army Regulation 635-212 with the issuance of change 39 in November 1972.  It established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.

11.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an HD 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 otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade to honorable.

2.  The applicant was discharged for unfitness, which was amply demonstrated by his record of service.  Unfitness is characterized by frequent incidents of a discreditable nature with civil or military authorities.  The applicant's record is replete with multiple instances of NJP and one special court-martial conviction.

3.  The applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  He is not deserving of an honorable or a general 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)                                         AR20100029916



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ABCMR Record of Proceedings (cont)                                         AR20100029916



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