BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130006513 


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.

2.  The applicant states his discharge was based on an isolated incident.  He was stationed in Korea under a segregated situation.  His noncommissioned officer-in-charge (NCOIC) had come to attack him.  He confronted him and his NCOIC left him alone.  He feared for his safety and went into hiding on base.  The base military police found him and beat him before taking him back to the stockade for processing.  He feels his discharge was unjust because there was no basis for what they did.  He is now a homeless veteran.

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.  On 26 September 1968, he enlisted in the Regular Army.  The highest rank/grade he held was private first class/E-3.

3.  He accepted nonjudicial punishment under the Uniform Code of Military Justice as follows:

* on 25 June 1969, for committing an indecent act, failing to be in the proper uniform, and disobeying a lawful order
* on 3 July 1969, for being absent from his appointed place of duty
* on 29 July 1969, for being absent from his place of duty

4.  Headquarters, 4th Battalion (Hercules), 44th Artillery, Special Court-Martial Order Number 13, dated 17 September 1969, shows he pled guilty on 16 September 1969 and was found guilty of:

* behaving with disrespect toward a superior commissioned officer
* willfully disobeying a lawful order from a superior commissioned officer
* stealing a tape recorder and microphone, the property of another Soldier
* wrongfully having in his possession three ounces or less of marijuana
* breaking restriction
* being disorderly in camp
* threatening to kill another Soldier

5.  On 17 April 1970, the applicant's commanding officer counseled him regarding the proposed action to separate him from the U.S. Army under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  The reason given for the proposed action was the applicant's frequent involvement in incidents of a discreditable nature with military authorities and an established pattern of shirking.  The commander advised the applicant of his rights.  On this same date the commander also recommended the applicant's discharge through command channels.

6.  On 21 July 1970 in correspondence to the brigade commander, the applicant's battalion commander stated the applicant was assigned replacement counsel because the original Judge Advocate General's Corps officer was no longer providing legal assistance due to appointment as a judge.  The replacement counsel visited the applicant in the stockade and advised him of the basis for separation.  The applicant refused to waive or request appearance before a board of officers and further refused to sign the letter of notification in acknowledgment of the counsel's assistance.  The counsel indicated this refusal on the letter and returned the papers and the applicant's Military Personnel Records Jacket to the battalion on 15 June 1970.

7.  Headquarters, 4th Battalion (Hercules), 44th Artillery, Special Court-Martial Order Number 7, dated 26 August 1970, shows:

	a.  he pled guilty on 12 May 1970 and was found guilty of assaulting a superior NCO by lifting up, chambering a round, and offering to do him violence with a loaded rifle; and

	b.  he pled not guilty on 12 May 1970 and was found guilty of wrongfully communicating a threat to injure a superior NCO.

8.  He also accepted nonjudicial punishment under the Uniform Code of Military Justice:

* on 12 October 1970, for assaulting three different persons in the execution of military police duties
* on 11 December 1970 for wrongfully having an unauthorized military pass in his possession and for twice failing to go at the time prescribed to his appointed place of duty

9.  On 16 February 1971 after carefully considering the evidence before it, a board of officers found the applicant undesirable for further retention in the military because of his extensive record of discreditable incidents which resulted in judicial and nonjudicial punishment under the Uniform Code of Military Justice.

10.  On 17 March 1971, the separation authority approved the applicant's elimination from the service because of unfitness.  He directed the issuance of an Undesirable Discharge Certificate.

11.  On 6 May 1971, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-212.  He was assigned a separation program number of 386 (unfitness, an established pattern of shirking).  His DD Form 214 shows he completed 2 years and 24 days of total active service with 197 days of lost time.

12.  On 27 August 1974, the Army Discharge Review Board denied the applicant's request to upgrade his undesirable discharge to a general discharge.

13.  Army Regulation 635-212 set forth the basic authority for the elimination of enlisted personnel for unfitness.  Paragraph 6 stated an individual was subject to separation for unfitness due to an established pattern of shirking.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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 has generally met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization is clearly inappropriate.

	b.  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 contentions were carefully considered.  However, the evidence of record does not support his request for an upgrade of his discharge.

2.  He was discharged under the provisions of Army Regulation 635-212 by reason of unfitness, an established pattern for shirking.  He accepted nonjudicial punishment on five occasions.  He was convicted by special court-martial twice for offenses such as:

* behaving with disrespect toward a superior commissioned officer
* willfully disobeying a lawful order from a superior commissioned officer
* stealing a tape recorder and microphone
* wrongfully having three ounces or less of marijuana in his possession
* breaking restriction
* being disorderly in camp
* threatening to kill another Soldier
* assaulting a superior NCO by offering to do him violence with a loaded rifle
* wrongfully communicating a threat to injure a superior NCO

3.  Based on the applicant's misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  In view of the foregoing, he is not entitled to 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 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)                                         AR20130006513



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ABCMR Record of Proceedings (cont)                                         AR20130006513



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