IN THE CASE OF:	  

		BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130006225 


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 (Armed Forces of the United States Report of Transfer or Discharge) to show he received a general discharge vice an undesirable discharge.

2.  The applicant states, in effect, he believes his DD Form 214 is incorrect.  He believes he received a general discharge and he would like his records reviewed to see if his DD Form 214 is incorrect.  If it is, he would like a new DD Form 214.

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 enlisted in the Regular Army on 19 November 1970.  He was assigned to Fort Leonard Wood, MO for basic training.  

3.  On 12 January 1971, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order.

4.  On 8 February 1971, he was assigned to Company C, 6th Battalion, School Brigade, Fort Gordon, GA for advanced individual training.

5.  He received NJP under the provisions of Article 15, UCMJ, as follows on:

* 29 March 1971, for assaulting another Soldier by striking him with a pool stick
* 13 April 1971, for disobeying a lawful order
* 15 April 1971, for breaking restriction

6.  On 30 April 1971, he was convicted by a special court-martial of two specifications of disobeying a lawful order and one specification of breaking restriction.  The punishment imposed included confinement for 30 days and a forfeiture of $50.00 pay.

7.  On 1 July 1971, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.  

8.  On 6 July 1971, he consulted with legal counsel who advised him of the basis for the contemplated separation action and of the procedures and rights available to him.  He acknowledged he understood that if he were issued an undesirable discharge he could expect to encounter considerable prejudice in civilian life and he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He waived consideration of his case before a board of officers and elected not to submit a statement in his own behalf.

9.  On 9 July 1971, the applicant's immediate commander recommended that he be discharged under the provisions of Army Regulation 635-212, for unfitness.  The commander cited his record of UCMJ and his conviction by a special court-martial as the bases for his recommendation.  

10.  On 16 July and 19 July 1971 respectively, his intermediate and senior commanders recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate.  
11.  On 30 July 1971, the separation authority approved the discharge action under the provisions of Army Regulation 635-212 for unfitness and directed the issuance of an Undesirable Discharge Certificate.  On 11 August 1971, he was discharged accordingly.

12.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-212, for unfitness - frequent incidents of a discreditable nature (Separation Program Number 28B) with an under other than honorable conditions characterization of service and he was issued an Undesirable Discharge Certificate.  He completed 7 months and 13 days of net active service with 40 days of lost time due to being in confinement.

13.  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.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided, in part that an individual was subject to separation for unfitness for frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

16.  Army Regulation 635-200, 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 evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on four occasions and the court-martial conviction he received for disobeying lawful orders and breaking restriction.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.

3.  Based on the applicant's overall record, his service clearly did not meet the standards of acceptable conduct of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.

4.  The DD Form 214 he was issued correctly shows he was issued an Undesirable Discharge Certificate and his characterization of service was under other than honorable conditions.  There is no evidence of an error on his DD Form 214; therefore, there is nothing to correct.

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)                                         AR20130006225



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130006225



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1