IN THE CASE OF:	  

		BOARD DATE:	    12 December 2013

		DOCKET NUMBER:  AR20130006441 


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 his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he had over 30 months of good time when he was discharged.  He feels that because he had nearly 3 years of good service he did serve his country.  He was not knowledgeable of what his discharge meant and he was talked into it.  He should not have taken the discharge as he had only 4 months left for his discharge to be honorable.  He should have waited and feels he would have if this had been explained to him in a better way.

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 26 June 1967 for a period of 3 years.  He was assigned for basic combat training (BCT) to the 19th Battalion, 5th BCT Brigade, Fort Knox, KY.

3.  On 10 July 1967, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being disrespectful in language to a superior noncommissioned officer (NCO).

4.  On 1 August 1967, he was convicted by a special court-martial of failing to obey a lawful order.  He was sentenced to the forfeiture of $30.00 per month for 3 months.

5.  He completed BCT and advanced individual training and he was awarded military occupational specialty 76Y (Supply Specialist).  On 29 January 1968, he was assigned to the 2nd Squadron, 9th Cavalry Regiment, Germany.

6.  On 26 February 1968, he received NJP under the provisions of Article 15, UCMJ, for failing to report at the prescribed time to his appointed place of duty.

7.  On 18 April 1968, he was assigned to the 2nd Squadron, 9th Cavalry Regiment, Fort Riley, KS.  This was a unit move.

8.  On 3 September 1968, he was promoted to the rank/grade of private first class/E-3.

9.  On 28 September 1968, he was convicted by a summary court-martial of being disrespectful in language to a superior NCO.  He was sentenced to extra duty for 30 days, restriction for 30 days, and the forfeiture of $56.00 per month for one month. 

10.  On 8 February 1969, he was convicted by a summary court-martial of being drunk at the unit mess tent.  He was sentenced to forfeiture of $48.00 per month for one month and reduction to private (PVT)/E-2. 

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

* 20 June 1969, for being absent without leave (AWOL) from his assigned unit from 16 to 18 June 1969
* 12 July 1969, for failing to obey a lawful regulation
* 8 August 1969, for violating a lawful order

12.  On 23 August 1969, he was notified by his immediate commander that he was requesting a Bar to Reenlistment be placed against him (the applicant).  The commander cited his record of convictions by court-martial and Article 15s and stated he (the applicant) was a substandard Soldier who should be barred from reenlisting in the Army.  He lacked the appropriate interest and professed an inability to conduct himself in a manner becoming a Soldier.  He further stated he had counseled him on several occasions and advised him of the adverse consequences that could result from his actions but it had been to no avail and rehabilitation had failed.  His conduct and efficiency had both been unsatisfactory.  

13.  On 23 August 1969, the applicant acknowledged receipt of notification of the adverse action and declined to submit a statement in his own behalf.  The approving authority subsequently approved the Bar to Reenlistment and it was placed in his records.

14.  His records contain a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 10 September 1969, wherein it showed his records were flagged on that date.  This form stated the applicant was presently serving confinement in the Post Stockade, Fort Riley, KS, and he was being processed for a discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).

15.  On 22 October 1969, he was convicted by a special court-martial of one specification each of assaulting an NCO with his fists, disobeying a lawful order, and being AWOL from 20 to 22 September 1969.

He was sentenced to confinement for 3 months and forfeiture of $80.00 per month for 3 months.  He was confined at the Post Stockade, Fort Riley, KS.

16.  On 21 January 1970, he was assigned to the 2nd Squadron, 9th Cavalry Regiment, Fort Riley, KS.

17.  On 25 March 1970, he was convicted by a special court-martial of one specification of being AWOL from 23 January to 25 January 1970.  He was sentenced to forfeiture of $60.00 per month for 1 month and reduction to 
PVT/E-1.

18.  The applicant's record is void of the specific facts and circumstances surrounding his discharge processing.

19.  However, the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged on 29 June 1970 under the provisions of Army Regulation 635-212, by reason of unfitness (separation program number (SPN) 386) with an under other than honorable conditions characterization of service.  He completed 2 years, 5 months, and 14 days of creditable active service with 201 days (or 6 months and 21 days) of lost time lost due to being AWOL and in confinement. 

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

21.  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 stated an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

22.  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.

23.  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 applicant's record is void of the specific facts and circumstances surrounding his discharge.  However, the available evidence shows he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on five occasions and the court-martial convictions he received on five occasions for repeatedly being AWOL, failing to obey lawful orders and regulations, being drunk, and assaulting an NCO.  In addition, at the time he had a Bar to Reenlistment Certificate placed against him based on his record of UCMJ and for being a substandard Soldier who did not have the interest or ability to conduct himself properly.  Accordingly, his immediate commander appears to have initiated discharge action against him for unfitness. 

2.  In the absence of evidence to the contrary, it is presumed his administrative separation was accomplished in compliance with applicable regulations in effect at the time, with no procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the available facts of the case.

3.  The available evidence does not show and the applicant has not provided any evidence that shows he had over 30 months of good service or that he had the option to wait 4 more months and he would receive an honorable discharge.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20130006441





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ABCMR Record of Proceedings (cont)                                         AR20130006441



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