BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130009734 


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 discharge under other than honorable conditions.

2.  The applicant states he shot a container of CS (commonly known as tear gas) in Chu Lai, Vietnam.  As the winds blew, a helicopter carrying a general officer caused the gas to blow in his direction.  The general stated, "Some men belong in the Army, some don't."  The applicant further states the incident was an accident that could have happened to anyone.

3.  The applicant provides no additional evidence.

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 records show he enlisted in the Regular Army for 3 years on 28 March 1968.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 4 October 1968 for failing to go at the time prescribed to his appointed place of duty.

4.  The evidence shows he was convicted on 17 February 1969 by a special court-martial of introducing alcoholic beverages into the barracks and the additional charge of being absent without leave (AWOL) for the period 3 through 5 February 1969.  The court sentenced him to hard labor for 30 days, forfeiture of $73.00 pay, and reduction to private/E-1.  The convening authority approved his sentence on 26 February 1969.

5.  He accepted NJP under the provisions of Article 15 of the UCMJ on:

* 9 August 1969 for being absent without proper authority for the period 2 through 3 August 1969
* 30 August 1969 for being absent from his appointed place of duty on 29 and 30 August 1969
* 21 September 1969 for failing to go at the time prescribed to his appointed place of duty and for failing to obey a lawful order
* 23 September 1969 for failing to obey a lawful order not to fire a CS round at any time
* 7 October 1969 for being absent from his appointed place of duty and for using disrespectful language towards a first sergeant 
* 15 October 1969 for being absent from his appointed place of duty
* 21 October 1969 for disobeying a lawful order and for breaking restriction

6.  The applicant's immediate commander notified him of his intent to initiate separation action against him for unfitness in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) with an undesirable discharge.  Separation action was recommended because of the applicant's defective attitude and performance of assigned tasks.  His behavior was described as excessively immature and undisciplined.

7.  The applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and the procedures/rights available to him.  He also acknowledged he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He waived representation by counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and declined to make a statement in his own behalf.

8.  In a memorandum through his intermediate commanders to the separation authority, dated 14 October 1969, his immediate commander stated the applicant had a previous conviction by a special court-martial and was currently pending trial by special court-martial for failing to obey a direct order to join his unit in the field.  He further stated the applicant's past performance, to include disobeying orders, AWOL, and shirking of duties substantiated his feeling that further rehabilitative efforts would be useless since the applicant had numerous opportunities to rehabilitate himself after committing the offenses for which he was punished.

9.  On 29 October and 1 December 1969, his intermediate commanders recommended approval of his separation with the issuance of an Undesirable Discharge Certificate.

10.  On 10 December 1969, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the issuance of an Undesirable Discharge Certificate.  The applicant was discharged accordingly on 15 December 1969.

11.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed a total of 1 year, 6 months, and 8 days of creditable active military service and he had 70 days of lost time.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  While there is evidence which supports the applicant's claim that he shot a  container of CS gas, there is no evidence and he provides no evidence to support his claim that the event was an accident.

14.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

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

16.  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 contention that his discharge should be upgraded has been carefully examined and found to be without merit.

2.  The applicant's service was characterized by his conviction by a special court-martial in addition to numerous instances of NJP under the provisions of Article 15 of the UCMJ.  The evidence shows he routinely disobeyed orders, was AWOL, shirked duties, and disregarded military authority.  As a result, his immediate commander initiated separation action against him for unfitness under Army Regulation 635-212.

3.  While there is evidence which supports the applicant's claim that he shot a  container of CS, there is no evidence and he provides no evidence to support his claim that the event was an accident which may have resulted in his discharge.  In fact, the evidence shows he received NJP for disobeying an order when he fired a CS round.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, 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)                                         AR20130009734



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ABCMR Record of Proceedings (cont)                                         AR20130009734



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