IN THE CASE OF: 

		BOARD DATE:	    23 January 2014

		DOCKET NUMBER:  AR20130006713 


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 that his discharge under other than honorable conditions be upgraded to either a general discharge under honorable conditions or a fully honorable discharge.

2.  The applicant states his discharge was an injustice because he was initially granted separation with a general discharge by his commander in Korea, but that discharge was not honored by officers at Oakland Army Transfer Point, Oakland, CA.  Instead, a noncommissioned officer (NCO) who worked in the legal office told him that the general discharge was unlawful.  As a result, he was kept in the Army without any explanation and reassigned to a unit where he was subjected to unfair treatment from both officers and NCOs.  He attests that he still has no idea why his general discharge was not honored.

3.  The applicant also contends that the minutes of his "General Court-Martial Proceedings" (i.e., administrative separation board proceedings) clearly show that numerous Army regulations, legal rules, and legal practices were not followed or were manipulated to cover up illegal actions and procedures which were committed by people in his chain of command.  His company commander admitted during the proceedings that he was not familiar with a particular Army regulation, law, or procedure yet he still made decisions concerning the applicant and his situation which seriously impeded his rights.  He takes particular exception to the fact that a certain NCO, who was known to pick on people, was constantly riding his back.  He also contends that during his administrative separation board proceedings there were numerous instances where the Government failed to comply with Army regulations concerning the conduct of the administrative separation board proceedings (see pages 11, 13, 24, 25, 26, 27 and 30).

4.  The applicant provides:

* a self-authored statement
* five letters
* three orders
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)

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's record shows he enlisted in the Regular Army on 19 May 1977.  Upon completion of initial entry training, he was awarded military occupational specialty 63B (Power Generator and Wheeled Vehicle Mechanic).  He was stationed at Fort Sill, OK, from 30 August 1977 to 8 January 1979.  During this period, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on three occasions for:  failing to report to his designated place of duty at the time prescribed, disobeying a lawful order from a superior NCO, and disobeying a lawful order from a superior commissioned officer.

3.  He arrived in Korea on 9 January 1979.  On 20 March 1979, he was subjected to NJP once again for violating the leave and pass policy.

4.  The applicant's record is void of a discharge packet initiated in Korea.  However, the applicant provides documentation which shows that on 3 April 1979 the applicant's unit commander notified him he was initiating action to discharge him from the Army under the Expeditious Discharge Program (EDP) in accordance with the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31.  The commander stated the reasons for this action was the applicant's inability to demonstrate promotion potential, his lackadaisical attitude toward the rules and regulations of the military and his demonstrated inability to conduct himself in a military manner at all times. The commander advised him that although he was recommending the applicant be separated with a general discharge under honorable conditions the final decision on his type of discharge rested with the separation authority.

5.  The applicant also provides Headquarters, 2d Infantry Division, Korea, Orders 92-107, dated 16 April 1979, which show he was reassigned from Korea to U.S. Army Separation Transfer Point, Oakland Army Base, Oakland, CA with a reporting date of 24 April 1979 and a scheduled discharge date of 25 April 1979.
The applicant's record is void of these orders or any orders showing they were revoked.

6.  Headquarters, Presidio of San Francisco, Presidio of San Francisco, CA, Orders 89-11, dated 7 May 1979, show the Director, Enlisted Personnel Management Division approved a second permanent change of station (PCS) for the applicant on 4 May 1979.  These orders also show the applicant was reassigned on a PCS to 7th Adjutant General Replacement Detachment, Fort Ord, CA, where he was subsequently assigned to Headquarters and Headquarters Company, 127th Signal Battalion on 17 May 1979.

7.  The applicant's record contains, and he also provides, a Letter of Appreciation, dated 12 July 1979, wherein the Director of Plans and Training expressed his appreciation for the applicant's contribution to the "Salute to the Nation, Fourth of July ceremony 1979."  The Director stated the applicant's self-sacrificing endeavors were of great value to the efforts for preparing the parade grounds and his conduct towards completing the mission was outstanding and an example for others to follow.  The letter was routed to the applicant through his company commander and directed to be placed in his military personnel file.

8.  His record contains a DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 18 September 1979, which shows his company commander recommended that he be barred from reenlistment in the U.S. Army.  The basis for the commander's recommendation was the applicant's continued pattern of misconduct.  The commander specifically cited the fact that he continually displayed an attitude that was unmilitary and downright pathetic.  He had repeatedly failed to obey lawful orders issued by superior NCOs and officers, was insubordinate and disrespectful when orders were given to him.  Repeated counseling and NJPs under Article 15 had little effect on changing and improving his attitude.  The applicant had no respect or discipline necessary of a Soldier for continued military service and he did not respect authority.  The commander listed numerous adverse counseling statements, two NJPs since his arrival at Fort Ord, and the fact that summary court-martial (SCM) proceedings had been initiated against the applicant on 13 September 1979.  The applicant acknowledged receipt of the notification and declined the opportunity to submit a statement in his own behalf.  The Bar to Reenlistment was approved on 26 September 1979.

9.  Headquarters, 7th Infantry Division Support Command (DISCOM), Fort Ord, CA, SCM Order Number 17, dated 3 October 1979, shows the applicant was arraigned and tried before an SCM which found him guilty of six specifications of violating Article 91, UCMJ by willfully disobeying lawful orders from and being disrespectful toward superior NCOs on 16 and 18 August 1979.  He was sentenced to be confined at hard labor for 20 days, and forfeiture of $179 pay per month for one month.  On 3 October 1979, the sentence was approved.

10.  On 23 October 1979, the applicant acknowledged that his unit commander notified him he was initiating action which could result in separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for frequent incidents of a discreditable nature with civil or military authorities.  He was advised of his rights and the impact of the discharge.

11.  He consulted with legal counsel and was advised of the basis for the contemplated action to accomplish his separation for misconduct and its effects; the rights available to him; and the effects of any action taken by him in waiving his rights.  He also indicated his understanding that if he received a discharge certificate or character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded.  The applicant elected not to submit statements in his own behalf.  However, he requested:

	a.  consideration of his case by a board of officers;

	b.  personal appearance before a board of officers; and

	c.  consulting counsel and representation by counsel.

12.  The unit commander subsequently recommended that the applicant be separated from the service based on his commission of frequent incidents of a discreditable nature with civil or military authorities.  The commander noted that upon arrival in this unit after serving 3.5 months in Korea, it was learned that the applicant was returned from Korea for separation under the provisions of the EDP.  His point of discharge, Oakland Supply Depot, elected not to discharge him, but reassign him to this unit.  The applicant had been a problem to this unit since his arrival.  He had displayed a total and blatant disregard for authority toward superiors both in and out of his chain of command.  Continued and repetitive counseling by his entire chain of command to include NJP action under the UCMJ had only produced stronger negative results.  At no time since his arrival to the unit had he shown the ability nor the minimal amount of ability to correct his behavior or attitude.  The applicant had been counseled on numerous occasions for:  attitude, five incidents of disrespect to an NCO, two incidents of refusal to get a haircut, three incidents of stealing from an Army and Air Force Exchange Service (AAFES) truck, communicating a threat, refusal of an order, and suspension of Post Exchange privileges.  The commander opined that the reversal of the applicant's discharge procedures from Korea and subsequent assignment to this unit constituted a rehabilitative transfer and his failure to respond to numerous counseling sessions and forms of punishment indicated it was unlikely that he would benefit from further rehabilitation attempts.

13.  On 24 October 1979, the battalion commander reviewed the proposed discharge action and strongly recommended approval of the separation action under the provisions of Army Regulation 635-200, paragraph 14-33b(1).  She echoed the applicant's previous offenses and stated the applicant showed total disrespect for anyone and anything that is military.  Rehabilitation in his case would not be judicious because his inability to function in a military environment could not be reversed.  She concluded the applicant had no potential for service under mobilization conditions and should not be transferred to the Individual Ready Reserve.

14.  On 25 October 1979, the DISCOM commander recommended to the Commanding General (CG), 7th Infantry Division and Fort Ord, CA, that the applicant appear before a board of officers and that the rehabilitative transfer requirement be waived.

15.  On 5 November 1979, the CG, 7th Infantry Division and Fort Ord, CA, waived the rehabilitative transfer requirement and directed that a board of officers be convened to determine whether the applicant should be separated for misconduct.  Accordingly, an administrative separation board was scheduled to convene and consider the applicant's case.

16.  When the board of officers convened, the applicant was personally present, represented by counsel, and afforded an opportunity to have witnesses speak on his behalf.  The applicant's counsel conducted a vigorous and aggressive defense and the applicant testified.  At no point did counsel attempt to prove any of the charges previously brought against the applicant for misconduct were inaccurate or unjustified.  The majority of his counsel's contentions focused on administrative technicalities pertaining to the composition of the board and the manner in which it was being conducted which were not consistent with a typical trial.  The board recorder repeatedly advised the applicant's counsel that the board proceedings were administrative in nature and as such were not subjected to the same policies or standards of law which are required for the purposes of conducting a trial in a court of law.  For each point raised by counsel, the recorder provided a counterpoint.  On several occasions the board proceedings were recessed in order to consult legal authorities regarding counsel's contentions.  Counsel even took exception with accepting into evidence copies of documents filed in the applicant's military personnel records which had not been labeled certified copies.  Counsel ignored the board president's repeated requests to allow the proceedings to continue and continued to insist that his objections and requests for continuation be addressed to the CG.  The proceedings were recessed once again to allow the president and recorder to consult with the Staff Judge Advocate (SJA).

17.  When the board reconvened, the recorder reminded all present that the board did not have the authority to discharge the service member, that it was only a fact finding board, and its only purpose was to make recommendations to the CG.  Ultimately, the applicant's counsel was advised that the CG was the convening authority for the board and that he personally reviewed the proceedings of each board.  The CG also had an unbiased SJA whose job it was to advise the CG as to whether or not a board was properly conducted.  In the event it was determined the applicant's board had been conducted improperly, another board would be convened to consider his case without any input from the previous board members.  Counsel's objections were duly noted and the board was resumed.  During the course of the board four witnesses opined that the applicant's senior NCO supervisor had a reputation of being particularly strict on some of his personnel.

18.  Evidence was considered, witnesses for both sides testified and were cross-examined, the applicant testified, and his counsel made closing remarks.  The board adjourned on 12 December 1979.  After carefully considering the evidence before it, the board found the applicant was unacceptable for further retention in the military because of frequent incidents of a discreditable nature with civil or military authorities.  In view of the findings, the board recommended that the applicant be discharged from the Army because of misconduct with the issuance of a Discharge Certificate Under Other Than Honorable Conditions.

19.  On 10 January 1980, the CG approved the findings and recommendations of the board, waived the rehabilitative reassignment requirement, and directed the applicant be discharged under the provisions of chapter 14 Army Regulation  635-200.
20.  On 17 January 1980, the applicant was discharged accordingly.  His DD Form 214 shows:

* his service was characterized as under other than honorable conditions
* he was discharged under the provisions of Army Regulation 635-200, chapter 14
* his narrative reason for separation was "Misconduct-frequent incidents of a discreditable nature with civil or military authorities"

21.  The applicant applied to the ADRB for an upgrade of his general discharge to an honorable discharge.  On 21 June 1982, by letter, the applicant was advised that after careful review of his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

22.  The applicant echoes his counsel's contentions that during his administrative separation board proceedings the Government failed to comply with Army regulations concerning the conduct of administrative separation board proceedings in the following instances:

	a.  page 11 shows the government failed to include the addresses of the individuals to be called as witnesses as required by Army regulation.  The board recorder reminded counsel that proceedings utilizing this regulation are administrative and not judicial in nature; therefore, an investigative board or board of officers is not bound by the rules of evidence prescribed for trials by courts-martial or for court proceedings generally.  Accordingly, subject only to the provision that anything in the minds of reasonable persons is relevant and material to an issue may be accepted as evidence and be given such weight as warranted by the circumstances.

	b.  page 13 shows Exhibits 15, 17, and 18 were not provided to counsel because they did not arrive in sufficient time.  The recorder agreed with counsel that he should be able to examine this evidence before it is presented.  A recess was taken so counsel could review the documents.  Following the recess, the recorder submitted certified copies of the documents into evidence.  Counsel and the applicant reviewed the documents and objected to their admission into evidence due to the fact that the signatures and dates were not legible.
	c.  page 24 shows the applicant's counsel took issue with the fact that the board was considering certified copies of documents which were copies themselves and contended that only certified copies of original documents were admissible as evidence.  The board recorder explained the documents were copied from documents filed in the applicant's military personnel record and the originals were held somewhere.

	d.  page 25 shows the applicant's counsel took issue with the admission of Exhibits 15, 17, and 18 into evidence because of the illegible signatures and dates.  The board recorder conceded these documents were not required to make the government's point and they were removed from evidence in the interest of saving time.  

	e.  page 26 shows the applicant's counsel stated that if the government had properly prepared the case in the first place, the board probably would have been finished that day.  He contended it was prejudicial to the applicant to appear before the board and sit back and let the government time and time again try to perfect their case and do necessary paperwork and administrative work that should have been done before they walked into the proceedings and should not be allowed.  In response, the board recorder reminded the board that it was a fact-finding board and their mission was to determine the facts regardless of how much work or no work it took.  There is no rule that says what can or cannot be done once the board is in session.

	f.  page 27 shows the board recorder obtained more legible copies of Exhibits 15, 17, and 18 and requested they be reentered into evidence.  The applicant's counsel objected based upon his argument that microfiche documents are not originals.  The board president stated arguments had been heard and decided the documents would be accepted into evidence. 

	g.  page 30 shows that the applicant's counsel requested a continuance of the board proceedings and counsel and the board recorder argued over who should be consulted in order to make a determination on whether or not that was appropriate.  The board president ordered a recess until the following morning in order to gain clarity on the proper procedure.  The board reconvened on the morning of 12 December 1979 and adjourned that afternoon.

23.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct and provides that individuals identified as offenders may be separated prior to their normal date of expiration of term of service.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

24.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.

25.  Army Regulation 635-200, provides in:

	a.  paragraph 3-7a 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.

	b.  paragraph 3-7b 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 contention that his record should be corrected by upgrading his discharge to either a general or an honorable discharge was carefully considered.

2.  Evidence indicates the applicant's chain of command initiated action for him to be voluntarily separated under the provisions of chapter 5, Army Regulation   635-200 in accordance with the EDP based upon his repeated misconduct and apparent inability to adapt to the military lifestyle.  The specific facts and circumstances which led to the revocation of this action are not available.  However, it appears the commander at the Transfer Point believed he had potential for retention and offered him the opportunity to be retained.  Since the regulation stated that no member would be discharged under this program unless he/she voluntarily consented to the proposed discharge, it is presumed (30 years later and in the absence of evidence to the contrary) that the applicant voluntarily consented to his retention.

3.  Evidence shows he was reassigned to Fort Ord, CA, where he was afforded an opportunity to continue his military career with a different group of officer and NCO leaders.  However, evidence shows he returned to his pattern of misconduct which led to numerous adverse counseling sessions, multiple NJPs, a Summary Court-Martial, and referral to an administrative separation board.

4.  Although the applicant and his counsel objected to the manner in which the board was conducted; evidence shows the board proceedings passed the scrutiny of the SJA and were subsequently approved by the CG.  As a result, the evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the quality of the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an honorable discharge.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable 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)                                         AR20130006713





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ABCMR Record of Proceedings (cont)                                         AR20130006713



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