BOARD DATE:	  12 September 2013

		DOCKET NUMBER:  AR20130001161 


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 an upgrade of his general discharge to honorable.  He also requests, in effect, restoration of his rank to specialist five (SP5)/pay grade E-5 by setting aside the nonjudicial punishment (NJP) he received under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).

2.  He states that after 7 years of honorable service he does not believe it was just to discharge him under honorable conditions because of his inability to pay his bills/debt.  He was also given an Article 15 for being late to formation.  He was told this was good and would help with the discharge so he could become a civilian and make more money to take care of his debt.  He believes this was unjust, and he is requesting that the injustice be corrected.  

3.  The applicant provides no documentary evidence in support of his request.

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 served honorably in the Regular Army from 22 September 1967 to 27 April 1970.  He held military occupational specialty (MOS) 63C (General Vehicle Repairman), and effective 27 May 1969, he was promoted to SP5/E-5.  

3.  On 28 April 1970, he reenlisted in the RA, in the rank of SP5/E-5. 

4.  On 7 February 1975, his commander recommended he be barred from reenlistment.  The commander noted the applicant's failure to live up to his credit obligations and his failure to take action to settle those obligations.  His commander also noted the applicant had a poor attitude toward the Army and at times had let his attitude affect his job performance and the performance of those who worked for him.  The applicant acknowledged he had been counseled and advised of the basis for the bar to reenlistment and indicated he did not desire to submit a statement in his own behalf.  

5.  On 14 February 1975, his commander notified the applicant of the initiation of action to effect his discharge pursuant to the provisions of Army Regulation 
635-200, paragraph 13-5a(5), for unfitness.  

6.  On 17 February 1975, he was advised by counsel of the basis for his contemplated separation action, its effects, and the rights available to him.  

7.  After consulting with counsel, he waived consideration of his case by a board of officers and a personal appearance before such a board.  He elected not to submit statements in his own behalf.  He waived representation by counsel and a psychiatric examination.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  

8.  On 18 February 1975, the applicant's commander recommended his discharge under to the provisions of Army Regulation 635-200, paragraph 
13-5a(5), for unfitness because of an established pattern of showing dishonorable failure to pay just debt.  Two documents attached to the recommendation summarized the counseling the applicant had received and his indebtedness.  

	a.  A document entitled Record of Counseling Under [Army Regulation]
635-200 (Personnel Separations - Enlisted Personnel) shows he was counseled on 15 occasions for the reasons shown below:

* 4 November 1974 – failure to properly supervise his section
* 3 December 1974 – attitude  
* 11 December 1974 – attitude and indebtedness
* 17, 18, 23, and 30 December 1974 – indebtedness
* 13 January 1975 – failure to properly supervise his section
* 15 and 30 January 1975 – indebtedness
* 4 February 1975 – appearance
* 7 February 1975 – missed appointment during duty hours with chaplain to discuss personal and financial problems
* 10 February 1975 – requested to see battery commander and requested elimination from the service in any way possible
* 11 and 12 February 1975 – absent from place of duty

	b.  A document entitled Summary of [applicant's] Indebtedness shows he had 12 creditors to whom he owed a combined total of $6,864.43.  The document shows he had made monthly payments on four accounts in January 1975.  He had last made payments on the remaining eight accounts in September 1974, October 1974 (two accounts), and November 1974 (three accounts).

9.  On 28 February 1975, the recommendation to bar the applicant from reenlistment was approved.

10.  On 3 March 1975, his battalion commander imposed NJP against him under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 11 February 1975.  His punishment consisted of reduction to specialist four (SP4)/E-4 and extra duty and restriction for 30 days.  He did not appeal the punishment.

11.  On 5 March 1975, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 13-5a(5), and directed he receive a General Discharge Certificate.  On 21 March 1975, he was discharged as directed in the rank/grade of SP4/E-4.  He completed 7 years and 6 months of total active service.

12.  There is no evidence to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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.  In pertinent part, it provided for the separation of individuals for unfitness due to an established pattern showing dishonorable failure to pay just debt.  An individual separated for unfitness due to an established pattern showing dishonorable failure to pay just debt 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 the individual's case.

	b.  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.

14.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  

	a.  Paragraph 3-4 states a commander will personally exercise discretion in the NJP process by evaluating the case to determine whether proceedings under Article 15 should be initiated; determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and that the Soldier does not demand trial by court-martial; and determining the amount and nature of any punishment, if punishment is appropriate.

	b.  Setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  The NJP is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for an upgrade of his discharge to honorable nor does it support restoration of his rank to SP5/E-5 by setting aside the NJP he received.

2.  He was repeatedly counseled regarding his indebtedness, and he failed to take action to resolve the issue satisfactorily.  As a result, he was discharged for unfitness due to an established pattern showing dishonorable failure to pay just debt.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.

3.  The regulatory authority for his discharge required issuance of an Undesirable Discharge Certificate unless an Honorable or General Discharge Certificate was warranted by the particular circumstances in his case.  The record shows the separation authority considered the applicant's record and determined he should receive a General Discharge Certificate.  In light of his dishonorable failure to pay just debt, the General Discharge Certificate he received is commensurate with his overall record of military service.  

4.  It is reasonable to conclude that the officer who imposed the applicant's NJP exercised discretion in the NJP process based on the applicant's offense and considered all mitigating factors and the factors raised to cast doubt on the applicant's guilt.  The record establishes that the commander determined the evidence was sufficient to find the applicant guilty beyond a reasonable doubt.  There is no evidence of clear injustice in the NJP he received; therefore, there he is an insufficient basis upon which to set aside the portion of the punishment pertaining to reduction to SP4/E-4.  

5.  In view of the foregoing, there is an insufficient basis upon which to grant 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)                                         AR20130001161



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ABCMR Record of Proceedings (cont)                                         AR20130001161



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