BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120006503 


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, through his Member of Congress, requests an upgrade of his discharge, from an under other than honorable conditions discharge to a fully honorable discharge.

2.  The applicant states he returned home, after one and a half tours in the Republic of Vietnam, with an excellent record of performance that resulted in reenlistment and early promotion to the rank/grade of sergeant (SGT)/E-5.  He states he was never treated for problems he had, he was just shoved aside and gotten rid of as quickly as possible.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 4 July 1971
* DD Form 214 (Report of Separation from Active Duty), for the period ending 13 June 1975
* a personal letter of consideration
* four third-party letters of support/character reference
* State of Georgia, Turner County, Temporary Letter of Guardianship of Minor
* Cardiac Catheterization Report from Phoebe Putney Memorial Hospital, dated 2 November 2005 (3 pages)
* an Operative Report and medical summaries from Cardiology Associates, Albany, GA (3 pages)

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 3 October 1969, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 67B (O-1/U-6 Airplane Repairman).

3.  On 4 July 1971, he was honorably discharged for the purpose of immediate reenlistment.  On 5 July 1971, he reenlisted in the Regular Army.

4.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows:

* he served in the Republic of Vietnam from on or about 7 May 1970 to on or about 10 December 1971
* he served in the Republic of Thailand from on or about 14 April 1974 to on or about 12 June 1975

5.  His record contains numerous documents, including letters from creditors and financial institutions, which show he failed to pay his debts in accordance with the repayment agreements he entered into.

6.  His record shows he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following three occasions:

* on 9 September 1974, for making a false and fraudulent claim against the Government, on or about 6 March 1973
* on 23 January 1975, for failing to report at the prescribed time to his appointed place of duty, on or about 17 January 1975, and for dishonorably failing to pay his debts, on or about 18 December and        30 December 1974
* on 1 April 1975, for absenting himself from his appointed place of duty on 26 February 1975, and for being absent without leave (AWOL) from on or about 27 February 1975 to on or about 4 March 1975

7.  On 16 April 1975, according to a DD Form 139 (Pay Adjustment Authorization) contained in his record, a collection action was initiated in the amount of $1,129.11, for failing to provide child support while receiving Basic Allowance for Quarters (BAQ) with dependents, during the periods 28 May 1971 through 27 August 1972 and 28 May 1974 through 18 February 1975.

8.  On 17 April 1975, the applicant's immediate commander initiated a bar to reenlistment against him.  The approval authority approved his bar to reenlistment.

9.  On 17 April 1975, the applicant's immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, due to unfitness.  

10.  On 17 April 1975, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for unfitness.  He waived:

* consideration of his case by, and personal appearance before, a board of officers
* submitting a statement in his own behalf
* representation by military counsel

11.  In conjunction with his counseling, he acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under honorable conditions (general) discharge or an undesirable discharge was issued to him.

12.  On 17 April 1975, subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13.  The immediate commander requested a waiver of any further requirements for counseling or rehabilitative transfer because prior attempts had failed.  Specifically, his commander cited the applicant's:

* established pattern showing dishonorable failure to pay just debts
* established pattern showing dishonorable failure to contribute adequate support to dependents by failing to comply with decrees of a civil court concerning support of dependents
13. On 27 May 1975, his intermediate commander recommended approval and a waiver of the rehabilitation efforts.

14.  On 4 June 1975, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, due to unfitness, and ordered the issuance of an Undesirable Discharge Certificate.  

15.  On 13 June 1975, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was credited with the completion of 5 years, 8 months, and 4 days total active military service.  His DD Form 214 further shows: 

* he was discharged under the provisions of Army Regulation 635-200, chapter 13, and assigned Separation Program Designator (SPD) JLG (Financial Irresponsibility)
* he received an under other than honorable conditions characterization of service
* he was issued an Undesirable Discharge Certificate

16.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitation.

17.  He provides:

   a. a personal letter of consideration, in which he expounds on his problems with his first marriage and the issues that resulted in his discharge; 

   b. four third-party letters of support/character reference from friends, associates, and former co-workers; 

   c. a State of Georgia, Turner County, Temporary Letter of Guardianship of Minor, dated 22 November 2011, that shows that he and his current spouse serve as guardians of a minor child; 

   d. a Cardiac Catheterization Report from Phoebe Putney Memorial Hospital, dated 2 November 2005 (3 pages), containing medical information related to his heart; and 

   e. an Operative Report and medical summaries from Cardiology Associates, Albany, GA (3 pages), containing medical information related to his heart.



18.  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, (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.

19.  Army Regulation 635-200, paragraph 3-7a states 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.

20.  Army Regulation 635-200, paragraph 3-7b states 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 records reveal a history of misconduct that included three instances of NJP.  Specifically, he failed to pay his financial obligations and he failed to provide adequate support to his dependents.  Accordingly, his chain of command barred him from reenlistment and initiated separation action against him for unfitness.

2.  His separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  He had an opportunity to submit a statement wherein he could have expressed his concerns, but he failed to take that opportunity.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to the requested relief.
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)                                         AR20120006503



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