IN THE CASE OF:	  

		BOARD DATE:	    31 October 2013

		DOCKET NUMBER:  AR20130004236 


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 reconsideration of his earlier request for an upgrade of his undesirable discharge.

2.  The applicant states he volunteered for early release from active duty at the time but he was not made aware of the type of discharge he received.  He is now experiencing trouble with his back, knees, and hips from serving as a paratrooper while on active duty.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Social Security Administration (SSA) decision 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110022332, on 31 July 2012. 

2.  The applicant provides a copy of his SSA decision.  This is considered new evidence that warrants consideration by the Board. 

3.  The applicant's record shows he enlisted in the Regular Army on 29 October 1974 and he held military occupational specialty (MOS) 31M (Multichannel Communications Equipment Operator).

4.  Upon completion of MOS training, he reported to Fort Benning, GA where he completed the Basic Airborne Course in April 1975.  He was subsequently reassigned to Fort Bragg, NC. 

5.  On 2 July 1975, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana on 16 June 1975.

6.  On 23 February 1976, his immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against him citing his misconduct that included tardiness, lack of cooperation, insubordination, and negative counseling.  The applicant was furnished a copy of this bar but he elected not to submit a statement in his own behalf.  On 3 March 1976, the appropriate authority approved the bar.

7.  On 10 March 1976, the applicant was convicted by a special court-martial of:

* communicating a threat to injure a sergeant on 21 January 1976
* assaulting a sergeant by punching at him with his fist on 22 January 1976
* assaulting the sergeant by striking him with means likely to produce bodily harm on 22 January 1976
* failing to go at the time prescribed to his appointed place of duty on
22 January 1976
* two specifications of willfully disobeying a lawful order from a superior noncommissioned officer on 22 January 1976
* using provocative words toward another sergeant on 23 January 1976

The Court sentenced him to a forfeiture of pay, confinement at hard labor, and a reduction to the lowest enlisted grade.  The convening authority approved his sentence on 30 March 1976.

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

	a.  Orders Number 3-3, issued by the U.S. Army Retraining Brigade, Fort Riley, KS, dated 6 July 1976, ordering his discharge from the Army effective
7 July 1976.

	b.  A DD Form 214 that shows he was discharged on 7 July 1976 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13-5, for misconduct - frequent involvement of a discreditable nature with authorities, with the issuance of an undesirable discharge.  He completed 1 year, 4 months, and 18 days of total active service with 11 days of time lost.  Additionally, his DD Form 214 states in item 27 (Remarks) the entry "Ref[erence] item 29 (Signature of Person being Separated) 'Separatee declined to sign 214.’”

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

10.  He provides a copy of his SSA appeal decision, dated 24 September 1997.

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

	a.  Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals 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:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

	b.  Paragraph 3-7a states 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 states 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 facts and circumstances that led to his discharge action.  However, his record contains a DD Form 214 that shows he was discharged on 7 July 1976 under the provisions of Army Regulation 635-200, chapter 13-5 for misconduct.

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He provided no information that would indicate the contrary.

3.  It appears 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.  This is evidenced by his NJP, Bar to Reenlistment, and court-martial conviction.

4.  Based on his record of indiscipline, his service does not merit an upgrade of his discharge.  Therefore, 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 to amend the decision of the ABCMR set forth in Docket Number AR20110022332, dated 31 July 2012.



      ____________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)                                         AR20130004236



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ABCMR Record of Proceedings (cont)                                         AR20130004236



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