IN THE CASE OF:	  

		BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120018395 


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 discharge. 

2.  The applicant states the Vietnam War era was a bad time for everyone.

3.  The applicant provides no documentation in support of his application.

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 27 May 1970.  He completed training as a communications center specialist and progressed quickly to rank of private first class (E-3).

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military justice on five separate occasions, the first being in February 1971.  His offenses included unauthorized absence, absences from his place of duty, violation of regulations, and striking a noncommissioned officer (NCO).  He was counseled on numerous occasions for similar behaviors and for having a poor attitude. 

4.  In April 1972, a special court-martial convicted him of using disrespectful language to an NCO, assault and battery of a fellow Soldier, and communicating a threat.  

5.  On 13 April 1973, the commanding officer advised the applicant that he was being considered for separation.

6.  The applicant consulted with counsel and was advised of the basis and possible consequences of the separation action.  He waived his rights to consideration of his case by a board of officers and personal appearance before said board and representation by counsel.  He indicated he would submit a statement in his own behalf; however, his counsel submitted a statement to the effect that the applicant had changed his mind.

7.  At a 25 April 1973 mental status evaluation, the applicant's behavior was found to be normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal, and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.  He had the capacity to participate in the discharge process and met retention standards.

8.  The unit commander recommended separation for unfitness by frequent incidents of a discreditable nature.

9.  The chain of command recommended approval and the separation authority approved the discharge and ordered an Undesirable Discharge Certificate be issued.

10.  In May 1973, he was arrested for possession of marijuana and drug paraphernalia.

11.  On 30 May 1973, the applicant was separated under conditions other than honorable under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13.  

12.  On 27 May 1974, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.  

13.  Army Regulation 635-200 sets forth the basic authority 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.

	c.  At that time chapter 13 applied to separation for unfitness and unsuitability.  Paragraph 13-5(a)1 provided for the separation for unfitness, which included frequent incidents of a discreditable nature.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was advised of his rights to submit statements in his own behalf, to be represented by counsel and to have his case considered by and to appear before a board of officers.  He declined to exercise any of these rights. 

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.







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)                                         AR20120018395





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ABCMR Record of Proceedings (cont)                                         AR20120018395



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