IN THE CASE OF:	  

		BOARD DATE:	  24 September 2013

		DOCKET NUMBER:  AR20130002412 


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 under other than honorable conditions discharge to a general or an honorable discharge.

2.  The applicant states:

   a.  He had no infractions in the military during his period of service.  His children have been denied the opportunity for assistance through the Department of Veterans Affairs.  He was disappointed with the type of discharge he received.
   
   b.  He is a Vietnam Era Veteran.  His orders to leave for Vietnam in January 1969 were cancelled when he got into trouble.  He believes the Army treated him extremely harsh considering the circumstances of his actions. 
   
   c.  As a Reserve Officers’ Training Corps graduate with a degree in electronics, he was commissioned as a second lieutenant (2LT) in August 1967.  He entered active duty in April 1968 and reported to Fort Gordon, GA.  After successfully completing training he was assigned to Fort Monmouth, NJ.  During this time his sister became pregnant and attempted to self-abort the baby.  She was bleeding internally and he initially tried to get her help by getting her admitted into the military hospital near him, but she was told to go to a civilian hospital.  Due to the fact he was the only one who tried to get her admitted, he was held responsible for her medical bill, which he had to pay up front.  The hospital threatened to report him to his supervisor at the base if he did not pay.  Unfortunately, the next decision he made placed him in a lot of trouble and it is something he regrets doing.
   d.  Unaware of the consequences, he tried to get the money by buying counterfeit money which he intended to use for the bill.  Realizing what he did and before he could give it back, within 24 hours of having the money in his possession he was arrested.  His case was then assigned to the civilian department and he was forced to resign with the promise of receiving a general discharge by his commander.  Without understanding his rights or having any legal counsel he was never promoted to first lieutenant.  He was threatened with being court-martialed if he did not resign.  As a young 2LT with no help and in trouble for the first time he was scared and completely confused.
   
   e.  Though he eventually understood what consequences his actions permitted, he was sure that a general discharge would be granted as promised. Months after everything was settled with the authorities he received his under other than honorable conditions discharge.  Back then he did not realize the importance of receiving the general discharge he was promised, but he does now.  
   
   f.  Recently, his children brought forth concerns of how limited his discharge was and its limitations pertaining to his benefits.  As they began to attend college he felt more inclined to seek an upgrade of his discharge which he believes he deserves.  He is requesting an upgrade of his discharge so that his children can receive benefits for undergraduate and graduate school and the benefits he and his wife quality for.

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 was appointed in the U.S. Army Reserve (USAR), Signal Corps, in the rank of 2LT, effective 16 August 1967, with prior enlisted service.  He entered active duty on 30 April 1968.  
3.  He received a "discharge" U.S. Army Officer Efficiency Report for the period 26 February 1968 through 19 January 1970.  In Part XI (Comments), his rater entered the following comments:

[Applicant] has not performed his duties during this period in a satisfactory manner because he could never really depend on the applicant for being at work on a regular basis.  He had been more than fair with the applicant in giving him time off to take care of personal matters.  However, there had been many other times when the applicant was late or absent without permission.  Reasons given by the applicant for these many absences from work had been quite questionable.  There were many duties he would give to the applicant, but he did not have confidence in the applicant because of his poor habits.  Other duties could not be given to the applicant because he did not have a security clearance.

During this period there had been many phone calls received by him and others in his office from people complaining about the applicant's unpaid bills and asking if something could be done to get him to pay what he owed.  On three occasions, he had been called about bad checks given by the officer.  In addition, too much time had been spent by him and his people in trying to locate that officer when he was absent from work without permission.

Because of the applicant's poor work habits and his inability to handle his finances, in his opinion, the applicant had not conducted himself as an Army officer should.  He was too much of a problem.  By his inability to pay his bills and passing bad checks, he had made the U.S. Army and that Agency look bad in the eyes of too many people.

Even though the applicant had been given advice and guidance from him, Colonel Wxxxxxx, and Lieutenant Colonel Fxxxx on several occasions, the applicant had shown no improvement.

Based on the foregoing information on the applicant, his inability, dependability, initiative, integrity, judgment, self-discipline, and self-improvement had been rated very low.  From poor work habits and non-payment of bills, the applicant had lost confidence and respect from his fellow workers and he had not accepted nor acted on advice, guidance, or constructive criticism given to him by members of that Agency.


4.  In Part XI (Comments), his indorser entered the following:

During the period covered by this report, the personal qualities and work performance demonstrated by the applicant had been unsatisfactory.  Frequent tardiness in reporting to and absence from duty, 12 known instances of passing of worthless checks, and numerous requests to the Agency concerning his unpaid debts had been a continued source of unnecessary expenditure of time and effort of other Agency personnel who had become involved as a result of the applicant's inability to conduct himself in the proper manner.

[Applicant] had been counseled by him and the Agency's Chief of Staff on numerous occasions about his shortcomings.  He had continued to make the same mistakes after repeated advice.

[Applicant] had been unable to adapt himself to the basic requirements of an Army officer.  He had taken no actions in correcting his shortcomings despite the attempts from fellow officers to give him guidance and advice.  That had adversely reflected on his personal qualities of initiative, judgment, non-duty conduct, self-discipline, self-improvement, and dependability.

[Applicant] had definitely been a problem officer while at that Agency.  His inability to manage his personal finances had reflected adversely on that Agency as well as the U.S. Army.  The integrity of that officer was questionable as a result of statements and excuses made by him when asked to explain specific shortcomings.  Furthermore, the applicant's security clearance had never been reinstated by higher authority since he had been with the Agency.

[Applicant] had lost confidence and respect from those with whom he worked because of his poor work habits and his lack of dependability.

5.  In December 1969, the applicant voluntarily tendered his resignation from the Army for the good of the service under the provisions of Army Regulation
635-120 (Personnel Separations – Officer Resignations and Discharges), 
chapter 5.  





6.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains:

	a.  AGPZ Form 40 (Extract), dated 9 January 1970, which shows the appropriate separation authority accepted the applicant's resignation request with the issuance of an under other than honorable conditions discharge.

	b.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows on 23 January 1970 he was discharged under the provisions of chapter 5, Army Regulation 635-120, in lieu of a board action for conduct triable by court-martial, in the rank of 2LT.  His service was characterized as under other than honorable conditions.  He completed 1 year, 8 months, and 24 days of net active service with no lost time.

7.  On 24 October 1975, the Army Discharge Review Board denied his request for an upgrade of his discharge.

8.  Army Regulation 635-120, in effect at the time, prescribed the procedures whereby an officer on active duty could tender his/her resignation or be discharged.  Chapter 5 of the regulation specified an officer could submit a resignation for the good of the service prior to general court-martial charges being preferred against him/her and prior to being recommended for elimination.  A resignation for the good of the service, when approved by Headquarters, Department of the Army (HQDA), was normally accepted as being under other than honorable conditions, in which case the officer would be furnished an Under Other Than Honorable Conditions Discharge Certificate.  If the resignation was accepted by HQDA under honorable conditions, the officer would be furnished a General Discharge Certificate.

9.  Army Regulation 635-100 (Personnel Separations – Officer Personnel), in effect at the time, provided the authority for the separation of officers from active duty.  Paragraph 1-5 specified the character of discharge would be predicated on the officer’s behavior and performance of duty while a member of a military service.  Characterization normally would be based on a pattern of behavior and duty performance rather than an isolated incident.  There were circumstances, however, in which conduct reflected by a single incident could provide the basis for characterization.  An officer would normally be furnished an honorable discharge unless conditions existed or as directed by the Secretary of the Army.





DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances which led to his voluntary resignation.  The issuance of a discharge under the provisions of Army Regulation 635-120, chapter 5, required that he voluntarily, willingly, and in writing, request resignation from the Army in lieu of trial by court-martial.  He could have continued with court-martial proceedings where his innocence could have been established if he felt so.  It appears all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

2.  The evidence of record shows the applicant received a discharge OER wherein his rating officials commented that the applicant had not performed his duties in a satisfactory manner and because of his poor work habits and his inability to handle his finances; the applicant had not conducted himself as an Army officer.  His demonstrated personal qualities and work performance had been unsatisfactory.  The applicant had been counseled on his shortcomings, but he continued to make the same mistakes after repeated advice.

3.  He has not provided sufficient evidence or argument to show his discharge should be upgraded or to mitigate the character of his discharge.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  It is presumed that his misconduct diminished the quality of his service below that meriting a general or a fully honorable 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)                                         AR20130002412



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ABCMR Record of Proceedings (cont)                                         AR20130002412



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