IN THE CASE OF:	   

		BOARD DATE:	  6 May 2014

		DOCKET NUMBER:  AR20130014490 


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 a general discharge.

2.  The applicant states:

	a.  he was drafted on 17 October 1969 and he only had a 10th grade education.  His ability to read and comprehend was very limited at the time.  He was able to achieve the journeyman level in his military occupational specialty (MOS) as a 36C2O (lineman).  He was a squad leader and he had very good performance reports during basic training.

	b.  he hurt his back in advanced individual training and for the remainder of his time in service he had to frequently go on sick call for his back.  As a result of the situation, a sergeant started accusing him of malingering and he would insult him by using the "N" word.

	c.  as a squad leader, he had to confiscate a small caliber weapon from one of his squad members because he was afraid the Soldier might lose control and use this weapon against a white Soldier who had been confronting him due to what he perceived as racial animosity.  He had intended to turn the weapon over the next day.  However, the situation changed and caused him to retain the weapon for an extra day.  Before he had the opportunity to turn the weapon in, a surprise locker inspection was held and the same white sergeant who had accused him of malingering found the weapon in his locker.  He explained the circumstances to him, but he refused to accept it and reported him.
	d.  he was charged with 7 days of lost time when he actually was on authorized leave for a few days.  Due to family matters, he had to ask for a few days extension of leave which was granted over the phone.  However, this extension was not noted in his records.

	e.  the same sergeant asked him if he wanted to get out of the Army and he told him he would think about it.  The next day, the sergeant brought him papers to sign and provided no explanation of the effect these documents would have on his life in the future.

	f.  he believes an injustice was done to him in regard to the way his military career ended.      

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

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 was inducted into the Army of the United States on 17 October 1969.  He completed his training and was awarded MOS 36C.  

3.  On 28 May 1970, he was convicted by a special court-martial of being absent without leave (AWOL) from 20 April to 27 April 1970.  He was sentenced to be reduced to E-1.  On 4 June 1970, the convening authority approved the sentence.   

4.  Between 12 October 1970 and 16 November 1970, nonjudicial punishment (NJP) was imposed against him on three occasions for:

* Failure to repair
* Failure to repair (two specifications)
* Failure to repair (three specifications) 

5.  He was counseled for:

* Failure to repair
* AWOL, failure to repair (two specifications)

6.  On 2 January 1971, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations -Discharge - Unfitness and Unsuitability) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander cited:

	a.  since the applicant's assignment to the unit he has been a constant disciplinary problem.  He has shown a great disregard for military authority and discipline.  He requires constant supervision for even the simplest tasks, with a group or individually.  He grows less responsive despite frequent counseling.  He feels the applicant can never become a productive Soldier.  

	b.  he has been counseled on numerous occasions, but no appreciable change has taken effect regarding his actions, attitude, or bearing.

	c.  elimination proceedings were being initiated instead of court-martial action for having a loaded pistol in the barracks.

7.  On 21 January 1971, after consulting with counsel and being advised of the basis for the contemplated separation action its effect and the rights available to him the applicant waived consideration of his case by a board of officers and representation by counsel.  He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He further acknowledged that, as the result of issuance of an undesirable discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life.  He also elected not to submit a statement in his own behalf.

8.  On 10 February 1971, the separation authority approved the recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate.  

9.  On 19 February 1971, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  He completed a total of 1 year, 3 months, and 26 days of total active service with 7 days of lost time.
10.  On 19 November 1971, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities was subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) currently in effect, sets forth the basic authority for the separation of enlisted personnel.  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.  Although the applicant contends he only had a 10th grade education when he was inducted, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.

2.  The evidence of record does not support his contention that he was provided no explanation of the effect his discharge would have on his life in the future.  Evidence shows he consulted with counsel on 21 January 1971 and he was advised of the basis for the contemplated separation action and its effect and the rights available to him.  He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He further acknowledged that, as the result of issuance of an undesirable discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life.  

3.  His record of service included three NJPs, one special court-martial conviction, and 7 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, his record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to a general discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  
5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20130014490



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ABCMR Record of Proceedings (cont)                                         AR20130014490



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