IN THE CASE OF:	  

		BOARD DATE:	  12 November 2013

		DOCKET NUMBER:  AR20130002626 


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 correction of his DD Form 214 (Report of Separation from Active Duty) by removing the entry "MISCONDUCT – FREQUENT INCIDENTS OF A DISCREDITABLE NATURE WITH CIVIL OR MILITARY AUTHORITIES."

2.  The applicant states, in effect, the Army Discharge Review Board (ADRB) upgraded his discharge and changed his narrative reason for separation during a personal appearance hearing.

3.  The applicant provides his DD Form 214.

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 28 June 1972.

3.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on:

* 18 May 1973, for failing to maintain his uniform in a clean condition and failing to obey a lawful order from a commissioned officer
* 5 July 1973, for failing to go at the prescribed time to his appointed place of duty on 4 and 30 June 1973

4.  On 27 December 1973, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13-5a, by reason of unfitness due to frequent acts of misconduct.  He had seven offenses that resulted in 50 days of time lost.  The immediate commander requested a waiver of any further requirements for counseling or rehabilitative transfer because he determined that rehabilitation would not produce the quality Soldier the Army desired.

5.  On 28 December 1973, having been advised by counsel, the applicant acknowledged notification of the pending separation action against him.  He was advised of the basis for the contemplated action to separate him for misconduct.  He waived:

* consideration of his case by, and personal appearance before, a board of officers
* submitting a statement in his own behalf
* representation by military counsel

6.  In conjunction with counseling, he acknowledged:

* he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him
* he understood that as a result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws

7.  On 28 January 1974, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 13-5a, due to unfitness with the issuance of an Undesirable Discharge Certificate.

8.  On 1 February 1974, the applicant was discharged accordingly.  The
DD Form 214 he was issued shows he completed 1 year, 5 months, and 11 days of total active service.  It further shows he:

* was discharged under the provisions of Army Regulation 635-200, chapter 13-5a(1)
* was assigned a Separation Program Designator (SPD) code of 28B (Unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities)
* received an under other than honorable conditions characterization of service
* was issued a DD Form 258A (Undesirable Discharge Certificate)
* had 53 days of time lost

9.  The applicant subsequently petitioned the ADRB for an upgrade of his discharge and change to the narrative reason for his separation.  On 8 November 1978, the applicant and counsel appeared before a personal appearance hearing in Atlanta, GA.  The applicant and counsel presented their case before the ADRB.

10.  On 13 November 1978, the ADRB granted the applicant an upgrade of his undesirable discharge to a general discharge.  However, the board determined the narrative reason for separation was both proper and equitable and voted not to change it.  Section D (Decision) of the ADRB Case Report and Directive stated in effect to issue the applicant a DD Form 214 reflecting a general discharge and issuance of a General Discharge Certificate.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13, paragraph 13-5a(1), then in effect, provided for discharge of individuals for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  This regulation further provided that an individual separated for unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may have been 

issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in his or her case.

	b.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	c.  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.

12.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that item 27 (Remarks) will be used to complete entries too long for their respective blocks.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that since his narrative reason for his discharge was changed by ADRB his DD Form 214 should be corrected accordingly was considered and determined to be without merit.

2.  Although the ADRB upgraded his discharge from undesirable to general, it determined his narrative reason for separation was both proper and equitable and did not change it.

3.  Based on his record of service, there was no justification by the ADRB then and there is insufficient evidence now to change the applicant's narrative reason for separation or to remove the narrative reason for his separation from his DD Form 214.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130002626



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ABCMR Record of Proceedings (cont)                                         AR20130002626



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