IN THE CASE OF:	  

		BOARD DATE:  30 January 2014

		DOCKET NUMBER:  AR20130008240 


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 he was young when he enlisted in the Army and simply wanted to go home.  He was improperly arrested after an unjustified search and seizure, and he failed to follow the advice of his defense lawyer not to fight the issue.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and four letters of support.

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 24 September 1969 for a period of 3 years.  At the time he was 19 years of age.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 95B (Military Policeman (MP)).

3.  Following his training, he was assigned to:

* Company A, 30th MP Battalion, Presidio of San Francisco, CA, from 
11 March 1970 through 17 December 1970
* Company B, 716th MP Battalion (Vietnam), from 29 January 1971 through
23 September 1971

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for:

* violating a lawful general order on 19 May 1971
* failing to report for duty (two occasions) and being incapacitated for duty due to intoxicating liquor on 10 June 1971
* breaking restriction on 24 June 1971
* failing to report for duty on 26 July 1971

5.  On 24 September 1971, the applicant was given a mental status evaluation by a physician serving in the rank of captain in the Medical Corps.

	a.  The physician found no indication of a disqualifying mental illness or disqualifying physical defects sufficient to warrant disposition through medical channels.

	b.  He found the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

6.  On 1 October 1971, the Commander, U.S. Army Drug Abuser Holding Center, Vietnam, notified the applicant that he was recommending him for separation under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), for unfitness.  The applicant was advised of his rights and the separation procedures involved.

7.  The applicant consulted with legal counsel and he was advised of the rights available to him.


	a.  He was advised he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to him.

	b.  The applicant also acknowledged he understood he might be ineligible for many or all benefits as a veteran under both Federal and States laws if he received an undesirable discharge under conditions other than honorable and that he might expect to encounter substantial prejudice in civilian life.

	c.  He waived consideration of his case by a board of officers.  He also waived a personal appearance before an administrative separation board.

	d.  He declined to submit statements in his own behalf.

	e.  He waived representation by military counsel and/or civilian counsel at no expense to the government.

	f.  The applicant and counsel placed their signatures on the document.

8.  On 1 October 1971, the commander recommended the applicant's separation under the provisions of Army Regulation 635-212 for unfitness based on frequent incidents of a discreditable nature, including repeated commission of court-martial offenses.

9.  On 3 October 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 for unfitness and directed the issuance of an Undesirable Discharge Certificate.

10.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 and assigned separation program number (SPN) 28B (Unfitness, Frequent Involvement in Incidents of a Discreditable Nature with Civil or Military Authorities).  His service was characterized as under conditions other than honorable.  He completed 2 years and 27 days of total active service.

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

12.  In support of his application the applicant provides the following documents:

	a.  letter from Rebecca A-----, undated, who states she has known the applicant for 13 years and attests to his personal character, including his involvement in the church and community;
	b.  letter from Rey and Myra R----, dated 18 April 2013, who state they have known the applicant for 13 years and attest to his reputable character, including his reliability and trustworthiness;

	c.  letter from Mike G--------, dated 21 April 2013, lead pastor of Gateway Church in the Gregory-Portland, TX, who states he has known the applicant for
6 years and attests to his willingness to help others in the church and community; and

	d.  letter from his wife, dated 26 April 2013, whom he met in 1997 and married in 1998.  She states they have fostered 39 children through Child Protective Services and adopted six of the children.  She adds she is aware of the incident that resulted in her husband's discharge and requests upgrade of his discharge.

13.  Army Regulation 635-212, in effect at the time, set forth the policy and procedures for administrative separation of enlisted personnel for unsuitability and unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  It provided that 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.  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.

	b.  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 contends his undesirable discharge should be upgraded because he was immature at the time and the circumstances surrounding his discharge were improper.

2.  Considering the applicant successfully completed training, was awarded MOS 95B, and served in an MP unit for more than 9 months prior to deploying to Vietnam, his contention that he was immature is not supported by the evidence of record.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. In addition, a physician specifically found the applicant was able to tell right from wrong and to adhere to the right.

3.  The applicant's discharge for unfitness under the provisions of Army Regulation 635-212 based on frequent incidents of a discreditable nature with military authorities was administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

4.  The evidence of record shows the applicant received NJP on at least four occasions that included repeated commission of court-martial offenses. Moreover, he completed less than 25 months of his 36-month active duty obligation.  As such, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant either 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)                                         AR20130008240



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ABCMR Record of Proceedings (cont)                                         AR20130008240



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