IN THE CASE OF:	  

		BOARD DATE:  18 February 2014

		DOCKET NUMBER:  AR20130010854 


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 his undesirable discharge be upgraded to honorable.

2.  The applicant states he did not do anything to warrant being locked up, tortured, and treated like a prisoner of war (POW).  He further states he was not tried by a judge.  

3.  The applicant provides a self-authored statement and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists Counsel, he did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 

3.  Counsel 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.  On 19 January 1970, the applicant enlisted in the Regular Army.  

3.  He accepted nonjudicial punishment (NJP) on:

	a.  8 May 1970, for wrongfully using provoking speech toward the military police on several occasions;

	b.  10 June 1970, for using disrespectful language toward a noncommissioned officer;

	c.  17 August 1970, for absenting himself from his unit for the period                8 through 12 August 1970;

	d.  15 October 1970, for absenting himself from his unit for the period             9 through 13 October 1970; and

   e.  4 December 1970, for failing to go at the time prescribed to his appointed place of duty on 2 December 1970.
   
4.  His record contains a DA Form 20B (Insert Sheet to DA Form 20 – Record of Court – Martial Conviction) that shows the applicant was tried and found guilty of being absent without leave (AWOL) for the period 12 through 21 February 1971; behaving with disrespect toward a superior noncommissioned officer on               3 February 1971; and failing to obey a lawful order on 26 February 1971.

5.  Special Court – Martial Order Number 18 also shows the applicant was sentenced to be reduced to the rank of private/pay grade E-1 and to forfeit $50.00 per month, for six months; and confinement to hard labor for 4 months and 20 days.  The sentence was adjudged on 6 April 1971.  On 16 April 1971, the court-martial convening authority approved the sentence.
  
6.  On 11 May 1971, the applicant's commander notified him that he had initiated elimination proceedings against him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) due to unfitness.

7.  On 13 May 1971, the applicant consulted with counsel.  He was advised by counsel of the basis for his separation for unfitness.  He waived consideration by and a personal appearance before a board of officers, waived representation by military counsel, and made no statements in his own behalf.  He further acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.

8.  On 13 May 1971, the applicant's commander recommended him for separation due to unfitness under the provisions of Army Regulation 635-212.  The commander stated the discharge was recommended because the applicant had shown a propensity for being AWOL despite attempts to rehabilitate him as a satisfactory Soldier.  The commander requested a waiver of further efforts for rehabilitation.

9.  On 18 May 1971, the appropriate authority approved the recommendation for discharge and directed that he be discharged due to unfitness and issued undesirable discharge.

10.  On 28 May 1971, he was discharged under the provisions of Army Regulation 635-212, with a separation program number of 28B, denoting unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities, and given an undesirable discharge.  The DD Form 214 he was issued for this period of service shows he completed 1 year, 1 month, and 12 days of total active service with 88 days of time lost.

11.  The applicant applied to the Army Discharge Review Board for an upgrade of his discharge.  After careful consideration of his military records and all other available evidence it was determined that he was properly discharged and on    26 February 1973, he was notified that his appeal was denied.  

12.  The applicant provides a self-authored statement in which he recounts his treatment while being restrained by military police and placed in the stockade at Fort Belvoir, VA.  While in the stockade, he claims he was tortured with a 200 watt light bulb and fed food unfit for a dog.  He further recounts how he was able to slip a letter to his aunt who passed it along to a Member of Congress who, along with others, looked into the applicant's allegations.  Ultimately, he claims he was found guilty and sentenced to two years at Fort Leavenworth, KS.  However, based on a pre-trial agreement he served less and was subsequently discharged and went home to nothing.

13.  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 a general or an honorable discharge.

14.  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.

15.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

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 an incidence of AWOL and a pattern of disregard for military authority.  As a result, his immediate commander initiated separation action against him under Army Regulation 635-212 for unfitness.

3.  The applicant provides insufficient evidence to support his contention that he did nothing to warrant being locked up, tortured, and treated like a POW.  Contrary to his beliefs, the available evidence shows 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.

4.  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 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)                                         AR20130010854





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130010854



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1