IN THE CASE OF:
BOARD DATE: 11 December 2012
DOCKET NUMBER: AR20120009385
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 upgrade of his undesirable discharge to an honorable discharge.
2. The applicant states:
* he was unjustly given a discharge under other than honorable conditions
* his discharge was given after undergoing a court-martial procedure for his alleged involvement in a fight and after his tour of duty in Vietnam
* he suffered this injustice for attempting to break up a barracks fight between a personal friend and another Soldier
* his friend punched the other Soldier in the face and that was the extent of the incident
* the incident lasted for no longer than a minute or two
* he and his friend were both Black and the other Soldier was Caucasian
* he went to bed and the other Soldier returned to the barracks with the military police
* he was implicated in a fight that he did not participate in; he merely tried to prevent the fight and charges were filed
* he was unknowledgeable about how to defend himself against the charges and ignorantly went along with the injustice
* he fought for his country in Vietnam and all he has to show is his shameful under other than honorable conditions discharge
* although it has been over 40 years, he requests the injustice be overturned and he be given the honorable discharge character of service he earned
3. The applicant provides a self-authored statement and a copy of his
DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 27 June 1969 and 1 December 1971.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. After having completed 2 years, 7 months, and 13 days of prior honorable active service, the applicant enlisted in the Regular Army on 28 August 1969 for a period of 3 years. He held military occupational specialty 76P (Stock Control and Accounting Specialist). The highest rank/grade he attained while on active duty was private first class (PFC)/E-3.
3. The evidence of record shows the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:
* 16 October 1969, for failing to go at the time prescribed to his appointed place of duty on 6 October 1969
* 18 September 1970, for disorderly conduct on 6 September 1970
* 23 January 1971, for unlawfully striking another Soldier on the head with his fist on 20 December 1970
* 12 October 1971, for striking another Soldier in the face with his fist on
29 September 1971 and breaking restriction on 1 October 1971
4. His record contains an AE Form 3133 (Unit Commander's Request for Psychiatric Examination), dated 14 October 1970, that shows:
a. the applicant's commander requested an evaluation due to his supervisor's report of him:
* not responding to counseling
* unsatisfactory job performance
* no initiative or desire to do any work
* requiring constant watching
* not getting along with his supervisors and other men
b. The request also shows the applicant received punishment under Article 15, UCMJ, on 14 October 1970 for driving an unregistered vehicle without a proper license. Further, the commander indicated the applicant had no potential for retention in service and that separation would be in the best interest of the Army and the veteran.
5. The applicant's record also contains an AE Form 3087 (Report of Psychiatric Evaluation), dated 27 October 1970, that shows the examining psychiatrist determined the applicant did not have a psychiatric illness and he was cleared for any action deemed by his command.
6. On 1 October 1971, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-212 (Discharge, Unfitness and Unsuitability), paragraph 6a (1) and (2). The basis for this action was the applicant's frequent incidents of a discreditable nature with military authorities and an established pattern of shirking.
7. Records reflect that on 28 October 1971, having been advised by counsel, the applicant requested consideration of his case by and a personal appearance before a board of officers. On 17 November 1971, a board of officers recommended the applicant's discharge because of unfitness with issuance of an Undesirable Discharge Certificate based on his repeated commission of petty offenses and habitual shirking.
8. On 22 November 1971, the separation authority, a major general, approved the applicant's discharge under the provisions of Army Regulation 635-212 for unfitness and directed the issuance of an Undesirable Discharge Certificate.
9. On 1 December 1971, the applicant was discharged accordingly. He completed 2 years, 3 months, and 4 days of net service this period for a total of
4 years, 10 months, and 17 days of creditable active service.
10. On 16 November 1973, the applicant was notified that the Army Discharge Review Board, after careful consideration of his military records and all other available evidence, determined he was properly discharged and denied his request for a discharge upgrade.
11. Army Regulation 635-212, in effect at the time, set forth the policy for administrative separation for unfitness. It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.
12. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel:
a. Paragraph 3-7a provides that 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 provides that 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's request for an upgrade of his undesirable discharge was carefully considered.
2. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. Evidence clearly shows he was not responsive to the rehabilitative efforts of his command. The applicant's misconduct clearly diminished the overall quality of his service below that meeting a general discharge.
3. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. His discharge appears to be appropriate based on the quality of his service with no evidence that shows his discharge was in error or unjust.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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) AR20120009385
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