IN THE CASE OF:	  

		BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130002218 


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 wrongfully accused of striking an officer.  He was detained by the military police for 12 hours pending an investigation.  He was found not guilty of striking and kicking the officer.  He was released at noon on
27 October 1974 and he went to his unit to report for normal duties, that included signing in every hour on the hour.  He also states he twice received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).  The first NJP was for allowing another Soldier into the arms room to deliver a comic book.  The second NJP was connected to his buffing the floor in the barracks.

3.  The applicant provides statements of support from his daughter and pastor.

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 9 November 1973, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 11B (Infantryman).

3.  The applicant accepted the following seven NJP's under Article 15, UCMJ on:

* 2 May 1974 for failing to obey lawful order
* 11 June 1974 for failing to go at the time prescribed to his appointed place of duty
* 21 August 1974 for disobeying a lawful command and failing to go at the time prescribed to his appointed place of duty
* 25 October 1974 for being disrespectful in manner/language and for communicating a threat to a noncommissioned officer
* 11 November 1974 for being absent without leave from his place of duty
* 19 March 1975 for failing to go at the time prescribed to his place of duty on two occasions
* 27 August 1975 for failing to go at the time prescribed to his appointed place of duty

4.  The applicant was also convicted by a summary court-martial on 5 November 1974 for disobeying a lawful command from a commissioned officer.

5.  On 26 September 1975, the commander recommended the applicant be required to appear before a board of officers for the purpose of determining whether he should be discharged prior to his expiration of term of service (ETS).  The commander cited his frequent incidents of a discreditable nature as the basis for this action.  The commander further stated that the applicant had been transferred from Company B to Company A for the purpose of rehabilitation; however, his misconduct continued.  The commander deemed it unlikely that any further attempt to rehabilitate the applicant would be successful and requested a waiver of any such attempts.

6.  On 26 September 1975, the commander notified the applicant that he was being considered for elimination under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unfitness.

7.  On 30 September 1975, the applicant consulted with counsel and elected not to make a statement in his own behalf.  He requested to appear before a board of officers and to be represented by military counsel.

8.  On 19 November 1975, the applicant was notified to appear before a board of officers on 21 November 1975.

9.  On 21 November 1975, the board of officers convened.  The applicant and his counsel were present.  The board recommended the applicant be separated and issued an Undesirable Discharge Certificate due to unfitness.

10.  On 14 December 1975, the appropriate authority approved the recommendation and directed the applicant be issued an Undesirable Discharge Certificate.

11.  Accordingly, on 2 January 1976, he was discharged under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness - frequent involvement of a discreditable nature with authorities, and furnished an Undesirable Discharge Certificate.  He completed 2 years, 1 month, and 24 days of total active service.

12.  There is no indication that 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.  The statements of support provided by the applicant's daughter and pastor attest to his being a loving, caring, sensitive person who is well respected and very dependable.  He is a very positive influence in his church and community.  He is very honorable and has great leadership skills.

14.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  It states:

	a.  Chapter 13, in effect at the time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, that included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 

	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.

	c.  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 contends his undesirable discharge should be upgraded to honorable.  His application implies that his request should be based on his good post-service conduct.

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

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

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.

5.  The applicant's implied claim of good post-service conduct is noted.  However, good post-service alone does not sufficiently mitigate his repeated acts of indiscipline during his military service.

6.  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)                                         AR20130002218



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ABCMR Record of Proceedings (cont)                                         AR20130002218



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