BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20130001350 


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 undesirable discharge to an honorable discharge.

2.  The applicant states, in effect:

* he was involved in a fight that was racially motivated
* as he and several other individuals were leaving post some racial comments were made and a fight started
* he came in late one night and received an order to get up early the next morning
* he went absent without leave (AWOL) after he was injured in a truck accident; the driver was charged with destroying government property

3.  The applicant provides no additional evidence.

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's record shows he enlisted in the Regular Army on 4 December 1967.  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  At the time of separation he held the rank/grade of private (PV1)/E-1.

3.  His record reveals a disciplinary history that included two special court-martial convictions in which he was charged with:

* being AWOL and assault
* disobeying a lawful order and the use of provoking words toward a noncommissioned officer

4.  His record contains a Certificate of Psychiatric Evaluation, dated 14 May 1969, which shows a military psychiatrist diagnosed the applicant with a passive-aggressive personality, chronic, moderate, manifested by fighting "for something to do."  The psychiatrist further noted:

* the applicant's condition existed prior to service
* the applicant could not be rehabilitated and he would not adjust to further military service
* the recommendation was the applicant's administrative separation under the provisions of Army Regulation 635-212 (Personnel Separations - Unfitness and Unsuitability)

5.  On 16 May 1969, the applicant's immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation 635-212 for unfitness.  He was informed that the basis for the recommendation was his repeated offenses of drunk and disorderly conduct.  He was advised of his right to present his case before a board of officers, to be represented by counsel, to submit written statements in his own behalf, or to waive these rights in writing.  He waived all rights and did not submit statements on his behalf.

6.  On 19 May 1969, the separation authority directed the issuance of an Undesirable Discharge Certificate.  It was noted that the applicant was currently confined and serving a 3-month sentence at hard labor.  His expected date of release was 25 July 1969. 


7.  The separation authority waived further rehabilitation requirements on 26 May 1969 and on 24 June 1969 the applicant was discharged.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-212 for unfitness.  

8.  There is no evidence in his records that show he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations. 

9.  Army Regulation 635-212 set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6 of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 (Enlisted Separations) provides in:

	a.  Paragraph 3-7a, 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, 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 records reveal a period of military service marred by a history of incidents of misconduct that included two court-martial convictions.  Accordingly, his chain of command initiated separation action against him.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  He is not entitled to a general or an honorable discharge.

4.  In view of the above, his request should be denied.

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)                                         AR20130001350



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ABCMR Record of Proceedings (cont)                                         AR20130001350



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