IN THE CASE OF:	  

		BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130006506 


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 undesirable discharge (UD) to a general discharge.

2.  The applicant states he was young and having family/marital problems and his noncommissioned officer (NCO) let him out early.  His NCO said his discharge would be undesirable and general.  The applicant states he did not know how his discharge would affect him.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 was inducted into the Army of the United States on 7 July 1967 at age 22.  He completed basic combat training and on 11 September 1967 he was assigned to the 3rd Battalion, Student Brigade, Fort Gordon, GA for advanced individual training (AIT).

3.  On 30 October 1967, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty at the prescribed time.

4.  On 13 November 1967, he was assigned to the 1st Battalion, 3rd AIT Brigade, Fort Polk, LA for AIT.

5.  On 14 December 1967, he received NJP under the provisions of Article 15, UCMJ, for one specification each of being disrespectful in language toward an NCO and for being disrespectful in language toward his immediate commander.

6.  On 24 January 1968, he was convicted by a special court-martial of one specification each of being absent without leave (AWOL) from 5 to 6 January 1968, wrongfully appropriating a military vehicle, and unlawfully carrying a concealed weapon.  He was sentenced to 6 months in confinement. 

7.  He ultimately completed AIT and he was awarded military occupational specialty 11B (Light Weapons Infantryman).   

8.  On 7 May 1968, he was assigned to the 1st Battalion, 27th Infantry Regiment, Vietnam.  On 25 May 1968, he was assigned in a patient status to the 12th Evacuation Hospital.  On 21 June 1968, he was medically evacuated from Vietnam.

9.  On 24 June 1968, he was assigned in a patient status to the Medical Holding Company, U.S. Darnall Army Hospital, Fort Hood, TX.

10.  On 29 August 1968, he was convicted by a special court-martial of one specification each of being AWOL from 16 to 19 August 1968 and assaulting a retired NCO by striking him with his fist.  He was sentenced to a forfeiture of $48.00 pay for 1 month and confinement for 1 month.

11.  On 20 September 1968, he received NJP under the provisions of Article 15, UCMJ, for being AWOL from 9 to 12 September 1968.

12.  On 8 November 1968, he pled guilty and he was convicted by a special court-martial of one specification of stealing by force the property of another Soldier and three specifications each of assaulting three different Soldiers.  He was sentenced to a forfeiture of $35.00 pay for 5 months, confinement for 5 months, and reduction to the rank/grade of private/E-1.

13.  The specific facts and circumstances surrounding the applicant's discharge processing are not available for review with this case.  

14.  However, the DD Form 214 he was issued confirms he was discharged on 20 December 1968, under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness (Separation Program Number 28B), with an Undesirable Discharge Certificate.  He completed 1 year, 1 month, and 28 days of net active service with 108 days of lost time due to being AWOL or in confinement. 

15.  There is no evidence in his available records that shows he requested assistance from his chain of command due to family or marital problems while he was serving on active duty. 

16.  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.

17.  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, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities or an established pattern of shirking.  This regulation prescribed that an individual discharged for unfitness would be furnished a UD, except when an honorable or a general discharge was warranted by the particular circumstances.

18.  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.

19.  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 processing.  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 three occasions and the court-martial convictions he received on three occasions for repeatedly being AWOL, being disrespectful toward his superiors, wrongfully appropriating government property, carrying a concealed weapon, stealing, and assaulting three other Soldiers.  It appears that accordingly, his immediate commander 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 applicant contends that his discharge should be upgraded because he was young and foolish at the time of his service.  Records show that he was over 23 years of age at the time of his offenses.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The applicant also contends his NCO told him his discharge would be undesirable and general.  However, as a UD is a discharge under other than honorable conditions and a general discharge is a discharge under honorable conditions, it is most likely he was told he may receive an undesirable or a general discharge (emphasis added).  Regardless, the approving authority is the only one that can direct the type of discharge a Soldier will receive.  

5.  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.  

6.  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)                                         AR20130006506



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ABCMR Record of Proceedings (cont)                                         AR20130006506



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