IN THE CASE OF:	  

		BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130007100 


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, in effect, that his general, under honorable conditions discharge be upgraded to honorable.  The applicant requests to personally appear before the Board.

2.  The applicant states he was fooled into signing his release papers.  He was a good Soldier.  He served his country well.  His father served in World War II.  His grandfather served in World War I.  His uncle served in Korea.  His son served in Iraq.  He served in the Republic of Vietnam (RVN).  He had enough of the abuse by the time he was discharged.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation 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.  On 12 March 1968, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 12 August 1968, the applicant was convicted by a summary court-martial of going from his appointed place of duty without proper authority.

4.  On or about 23 September 1968, the applicant arrived in the RVN.

	a.  On 6 October 1968, he was assigned for duty as a rifleman with Company C, 2th Battalion, 35th Infantry Regiment, 4th Infantry Division.

	b.  On 17 January 1969, he was assigned for duty as an infantryman with Company C, 87th Infantry Regiment.

	c.  Special Orders Number 14, dated 17 May 1969, show the applicant was convicted of striking a noncommissioned officer, disobeying a lawful order, and sleeping while on guard duty.

	d.  On 16 May 1969, he was assigned to Company D, 51st Infantry Regiment.

	e.  On or about 24 October 1969, he departed the RVN for duty in the United States.

5.  On 7 December 1969, the applicant was assigned for duty as an assistant gunner with the 2nd Battalion, 52nd Infantry Regiment located at Fort Hood, TX.

6.  On 8 January 1970, the applicant accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) during 2-5 January 1970.

7.  On 29 January 1970, the applicant accepted NJP for pushing another Soldier to the floor.

8.  A letter dated 14 April 1970 states that the applicant had been referred to the Mental Hygiene Consultation Service for psychiatric clearance pursuant to administrative action under the provisions of Army Regulation 635-212.  Direct examination and review of his past history revealed no indication of any psychiatric disorder.  He was found to be rational, coherent and oriented to time, place and person.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right.  He had the mental capacity to understand and participate in board proceedings.

9.  On 12 May 1970, the brigade commander directed that the applicant be reassigned to the 1st Battalion, 81st Armor Regiment for the purpose of rehabilitation.  The elimination action was suspended pending the results of the rehabilitation transfer.

10.  Special Court-Martial Orders Number 15, dated 22 May 1970, show that the applicant was convicted of violation of Article 90, Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful command, and for violation of Article 86 for being AWOL from 4 to 7 April 1970.

11. On 14 July 1970, the applicant's commander recommended him for separation due to unfitness under the provisions of Army Regulation 635-212.  The commander stated that the applicant had been assigned to the unit for rehabilitation and had received extensive counseling.  He was informed that this was a fresh start for him.  Every effort was made to give him the benefit of the doubt.  However, he had little regard for this opportunity.  He was AWOL twice and has shirked his duties.

12.  On 14 July 1970, the applicant's commander notified him that he had initiated elimination proceedings against him for unfitness based on the discussion in the preceding paragraph.

13.  On 16 July 1970, the applicant consulted with counsel and waived consideration of his case by a board of officers; waived representation by counsel; and elected not to submit a statement in his own behalf.

14.  On 1 August 1970, the appropriate authority approved the recommendation for discharge and directed that he be discharged due to unfitness and issued a DD Form 258A (Undesirable Discharge Certificate).

15.  On 14 August 1970, the applicant was discharged under conditions other than honorable.  He had completed 2 years, 3 months, and 4 days of creditable active duty service.

16.  In 1978, the Department of Defense Special Discharge Review Program (DOD SDRP) reviewed the applicant's discharge and determined that re-characterization was warranted.  Accordingly, his characterization was changed to under honorable conditions.

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided that members were subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

18.  Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) provides at 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

19.  Army Regulation 15-185 governs operations of the ABCMR.  It states applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to honorable.

2.  The applicant requested a personal appearance before the Board; however, because there is sufficient evidence on the record to fully consider this case a formal hearing is not warranted.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons for his discharge were appropriate considering all of the facts of the case.

5.  The available evidence further shows that the applicant's discharge was reviewed by the DOD SDRP in 1978.  As a result of that review, his characterization was upgraded from under conditions other than honorable.

6.  The applicant has not provided convincing argument or sufficient documentary evidence showing that his discharge should be further upgraded.

7.  In view of the above, the applicant’s request should be denied.

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)                                         AR20130007100





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ABCMR Record of Proceedings (cont)                                         AR20130007100



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