BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120002486 


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, in effect, an upgrade of his under conditions other than honorable discharge.

2.  He states his discharge was under conditions other than honorable.  He stayed on active duty after the Army said he was unable to adapt.  He believes his discharge is unfair, and wonders why, if he was unable to adapt, the Army kept him on active duty for 3 years.  He indicates he has had problems dealing with his service in Vietnam, and now needs "a better discharge" so he may get help for the post-traumatic stress disorder and other disabilities he suffers from.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 30 September 1971, the applicant enlisted in the Regular Army for a period of 3 years.  After completing initial entry training, he was awarded military occupational specialty (MOS) 76A (Supplyman), and he later served in primary MOS 76Y (Unit Supply Specialist).

3.  On 27 January 1972, while attending advanced individual training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to be at his appointed place of duty at the time prescribed on 26 January 1972.  

4.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 15 March to 21 November 1972.

5.  During his service in Vietnam, he accepted NJP on the following dates for the following offenses:

* 5 May 1972 – failure to go at the time prescribed to his appointed place of duty and sleeping on post
* 20 September 1972 – failure to go at the time prescribed to his appointed place of duty for 3 consecutive days and failure to obey a lawful order

6.  After his service in Vietnam, he was assigned to Fort Campbell, KY.  While assigned to that installation he accepted NJP on the following dates for the following offenses:

* 17 January 1973 – failure to go at the time prescribed to his appointed place of duty on two occasions and willfully disobeying the lawful order of a superior noncommissioned officer
* 31 January 1973 – breaking restriction and absenting himself from his place of duty without proper authority
* 14 February 1973 – failure to report to his assigned place of duty
* 15 March 1973 – being absent without leave (AWOL) from 4 to 7 March 1973

7.  The complete facts and circumstances of the applicant's discharge are not available for review.  On 13 July 1973, Headquarters, 101st Airborne Division (Airmobile) and Fort Campbell, Fort Campbell, KY, issued Special Orders Number 147 Extract, which discharged him effective 19 July 1973 under the authority of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5a(1) and 13-17e.  The orders show he was to receive a DD Form 258A (Undesirable Discharge Certificate) and he was to be assigned Separation Program Number (SPN) 28B.

8.  On 19 July 1973, he was discharged in accordance with Special Orders Number 147.  His DD Form 214 shows his service was characterized as under conditions other than honorable.  He completed 1 year and 9 months of total active service.  Item 11c (Reason and Authority) shows he was assigned SPN 28B.

9.  The applicant’s record documents no acts of valor or significant achievement warranting special recognition.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-5-1 (Separation Program Numbers), in effect at the time of the applicant's discharge, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies SPN “28B” as the code assigned to enlisted Soldiers discharged for unfitness under the provisions of Army Regulation 635-200, paragraph 13-5a(1), for involvement in frequent incidents of a discreditable nature with civil or military authorities. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  Paragraph 13-5a stated a Soldier could be separated for unfitness due to frequent incidents of a discreditable nature with civilian or military authorities.  An individual separated by reason of unfitness was to be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate could be issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in his case.

	b.  Paragraph 3-7a provides that an honorable discharge (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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b provides 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 honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for upgrade of his discharge.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for disability benefits.

3.  There is no evidence supporting his assertion that he was on active duty for 3 years.  His record shows he enlisted for 3 years, and he failed to fulfill that commitment.  When he was discharged, he had completed 1 year and 9 months of total active service.  

4.  The record shows he was discharged for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  Discharge on those grounds would have been warranted due to his multiple instances of NJP.  In the absence of evidence showing otherwise, it must be presumed that all requirements of law and regulation were met and his rights were fully protected throughout the discharge proceedings.

5.  Based on his multiple instances of NJP, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a GD or an HD.

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)                                         AR20120002486





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ABCMR Record of Proceedings (cont)                                         AR20120002486



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