BOARD DATE:	  24 April 2014

		DOCKET NUMBER:  AR20130012580 


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 an honorable discharge.

2.  The applicant states, in effect, that he is a Vietnam Veteran and after receiving an honorable discharge for his first period of service he reenlisted in the Army.  During his second enlistment he received one Article 15 which he believed to be the equivalent of a minor (being late) or isolated offense.  He suffered racial discrimination which impaired his ability to serve and his punishment was too severe compared to current standards.  His chain of command abused their authority when it decided to give him an undesirable discharge.  He contends that he has been a good citizen since his discharged.

3.  The applicant provides a self-authored account of the events that led to his discharge, a color photograph, two character references, and two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/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.  He was inducted into the Army of the United States on 11 March 1971 and he held military occupational specialty 94B (Cook).  He served in Vietnam from 
31 August 1971 to 23 February 1972.

3.  The applicant was honorably discharged on 24 July 1972 and reenlisted on 
25 July 1972.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ:

	a.  on 27 November, for being absent without authority from his place of duty from 27 September to 19 October 1972 and again on 2 November 1972;

	b.  on 5 June 1973 for being absent without authority from his place of duty from 29 to 30 May 1972;

	c.  on 21 September 1973, for being absent  from his place of duty on
18 September 1973;

	d.  on 25 October 1973, for willfully disobeying a lawful order and being absent without authority on 17 October 1973; and

	e.  on 23 November 1973, for willfully disobeying a lawful order and failing to report to his appointed place of duty on 12 November 1973.

5.  Item 44 (Time Lost) of his DA Form 20 (Enlisted Qualification Record) shows the following entries:

* 27 September-18 October 1972 (absent without leave (AWOL))
* 7-11 May 1973 (AWOL)
* 29-30 May 1973 (AWOL)
* 10-17 September 1973 (AWOL)
* 8 November-10 December 1973 (AWOL)
* 28 January-30 January 1974 (AWOL)
* 6 February-8 February 1974 (AWOL)
* 8 February-22 February 1974 (pretrial confinement)

6.  His DA Form 20B (Record of Court-Martial Conviction) shows he was convicted by Summary Court-Martial on two specification of being AWOL.  His sentence was approved and adjudged on 22 February 1974.

7.  On 29 October 1973, the applicant's commander recommended him for elimination under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of Unfitness.  His commander cited the applicant's unsatisfactory duty performance, conduct, and appearance.  The applicant failed to make improvements in these areas despite being counseled on numerous occasions.  Further, the applicant had been AWOL repeatedly and disregards orders from superior noncommissioned and commissioned officer without concern.  Attempts to reassign the applicant were unsuccessful.

8.  On 13 November 1973, the unit commander notified the applicant that he was recommending the applicant for discharge under the provisions of chapter 13, Army Regulation 635-200 by reason of unfitness.  This form contains his signed acknowledgment and the following entry:  "I reserve the right to present my case before the board of officers should my discharge be less than honorable."

9.  On the same day, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, of the rights available to him and of the effect of a waiver of those rights.  Subsequent to receiving legal counsel, he waived his rights to have his case considered by a board of officers, a personal appearance before a board of officers, and representation by counsel based on the issuance of a better than undesirable discharge.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he was issued a general discharge.  Further, he understood that as the result of issuance of an undesirable discharge under conditions other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

10.  On 23 November 1973, his intermediate commander recommended approval of his separation; however, directed that a board of officers be convened to considered the applicant's conditional waiver.

11.  The applicant was reported AWOL during the course of his elimination processing and his separation action was returned to his unit without action.

12.  Subsequently, on 13 February 1974, he personally appeared before an administrative separation board.  After careful review, the commanding general concurred with the findings and recommendations of the board and he directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13 for unfitness and issued an undesirable discharge.

13.  On 22 March 1974, the applicant was discharged accordingly.  His DD Form 214 issued at the time of his discharge shows he was discharged under the provisions of Army Regulation 635-200, chapter 13 for with an Undesirable Discharge Certificate.  He completed 2 years, 20 months, and 9 days of total active service.

14.  On 21 November 1980, the Army Discharge Review Board (ADRB) notified the applicant that his application for an upgrade of his discharge was denied.

15.  The applicant provides two character references that state the applicant is a decent, hard working, conscientious, and honest person facing some health challenges.  

16.  In addition, he provides his personal account of the events that led to his discharge.  In his account he states that after serving in Vietnam he was stationed at Fort Jackson, SC and while there he prevented a Soldier from committing suicide.  His fellow Soldiers attacked him because they believed that the applicant ruined the suicidal Soldier's career by calling for medical assistance.  He was afraid for his life and he was later transferred to Fort Dix, NJ in order to get away from the situation.  He contends that his commander chewed him out on two occasions for being late for inspection and the second time he ended up in jail.  He met with counsel who assured him that the separation board would most likely recommend that the he receive an Article 15 and be sent back to work; however, as soon as he acknowledged that he had been late the proceedings stopped and he was returned to confinement.  He was subsequently discharged without any consideration of a more reasonable solution, such as an Article 15.  He feels like he is on the fringe of society, unable to work on a regular basis, and barely being able to support himself.  The pain and suffering he endured over the years is unbearable.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A general or honorable discharge was considered appropriate.  Further, it states in:

	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's request for an upgrade of his discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's contentions are noted; however, his records reveal a history of misconduct which includes several instances of NJP, frequent counseling, and time lost.  He was provided with multiple counselings and/or opportunities for rehabilitation by his chain of command but he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.  

3.  The evidence of record shows the his separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

4.  After reviewing the applicant's entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, he is not entitled to an upgrade of his 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)                                         AR20130012580





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ABCMR Record of Proceedings (cont)                                         AR20130012580



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