IN THE CASE OF:	  

		BOARD DATE:	  15 October 2013

		DOCKET NUMBER:  AR20130003050 


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 (UOTHC) discharge.

2.  The applicant states:

* he was not read his rights under the provisions of Article 32, Uniform Code of Military Justice (UCMJ), and he was never given the chance to seek legal counsel
* he was blackmailed into accepting the discharge with threats of confinement in the stockade
* he was suffering from post-traumatic stress disorder (PTSD) at the time

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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.  After having had prior periods of honorable service, the applicant reenlisted in the Regular Army on 30 July 1970 in military occupational specialty (MOS) 12C (Bridge Specialist).

3.  The complete facts and circumstances surrounding his discharge are not available for review with this case; however, his records contain the following documents:

	a.  DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 5 January 1971, for failure to report to his appointed place of duty;

	b.  DA Form 2166-4 (Enlisted Efficiency Report), dated 11 January 1971, which shows the comments, "Individual is not now assigned in his duty MOS.  Individual demonstrates poor attitude toward his work and is inadequate toward assuming responsibilities."

	c.  A bar to reenlistment initiated on 22 June 1971.  The commander cited the reasons for the bar were 3 letters the applicant received due to indebtedness, the Article 15 imposed on 5 January 1971, and the constant counseling the applicant had received during the past 6 months.  On 30 June 1971, the applicant's bar to reenlistment was approved.

	d.  A duly-constituted DD Form 214 showing he was discharged on 8 September 1971 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness with a character of service of under other than honorable conditions.  He was assigned separation program number 28B (Unfitness – Frequent Involvement in Incidents of a Discreditable Nature with Civil/Military Authorities).  His DD Form 214 for this period shows in:

* items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) – "PV1" and "E-1"
* item 6 (Date of Rank) – 1 September 1971
* item 26 (Non-Pay Periods Time Lost) – 21 through and 22 July 1971 and 2 through 4 August 1971 

4.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

5.  He did not provide copies of his medical records and they are unavailable.  Additionally, his available record is void of a PTSD diagnosis.

6.  Army Regulation 635-212, in effect at the time, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

7.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, 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 record is void of the specific facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 8 September 1971 under the provisions of Army Regulation 635-212 by reason of unfitness.

2.  Although the applicant contends he was suffering from PTSD, he was blackmailed into accepting the discharge, and he was denied counsel, he fails to provide any evidence.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.


3.  The applicant's discharge appears to be appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, his service does not merit an upgrade of his discharge to either honorable or general.

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)                                         AR20130003050



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ABCMR Record of Proceedings (cont)                                         AR20130003050



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