IN THE CASE OF:	  

		BOARD DATE:	  29 April 2014

		DOCKET NUMBER:  AR20130015815 


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 under honorable conditions discharge.

2.  He states he had a nervous condition when he was in the service and he was on medication (Thorazine).  This condition is the reason for his behavior in the service.  His court-martial was unjustified because he was a sick man.

3.  He provides character references.

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 1 August 1972.

3.  A Standard Form 600 (Chronological Record of Medical Care) indicates he was evaluated on 30 August 1973 at the Medical Clinic at Fort Hood, TX.  The healthcare provider stated the applicant came into the clinic due to extreme nervousness.  The applicant was apparently shot at by a group of his peers and was very nervous about this persecution.  The Impression was listed as "acute anxiety" and he was dispensed 25 milligrams of Mellavill.  

4.  His service record contains Special Orders Number 142 published by Headquarters,1st Cavalry Division, Fort Hood, TX on 27 July 1973 which reduced him to private/E-1(PV1), effective 25 July 1973 for nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) by reason of misconduct.  The Record of Proceedings under Article 15, UCMJ is not present in his records.

5.  On 30 January 1974, he was convicted by summary court-martial of being disrespectful in language to his superior warrant officer.  He was sentenced to a forfeiture of $242 pay for one month, to perform extra duty for 60 days, and restriction to place of duty for 60 days.  

6.  On 19 June 1974, he was convicted by a special court-martial of communicating a threat to his superior warrant officer (two specifications) and disobeying a lawful order from his superior warrant officer.  The court-martial proceedings are not present in his records.  This information was taken from a Report of Result of Trial, dated 21 August 1974.

7.  His DD Form 214 shows 143 days of lost time under 10 U.S.C. 972 from 
19 June 1974 to 11 November 1974.

8.  He was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities and illegal possession of a controlled substance (marijuana).

9.  On 18 November 1974, he consulted with legal counsel, waived consideration and personal appearance before a board of officers, and declined to submit a statement in his own behalf.

10.  On 21 November 1974, the separation authority waived rehabilitation requirements, approved the recommendation for separation, and directed the issuance of an Undesirable Discharge Certificate.  Accordingly, he was discharged on 25 November 1974 with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 13 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 11 months, and 2 days of total active service with 143 days of lost time.
11.  He provided three character references from his neighbors and friends who attested to him being a model citizen, a good friend, conscientious, kind, considerate, friendly, and polite.

12.  On 24 March 1986, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  

   a.  Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.

   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.  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 service record includes a medical document which shows he went to a Medical Clinic in August 1973 due to extreme nervousness following an incident in which he was shot at by a group of his peers.  The healthcare provider noted possible diagnosis of "acute anxiety."  However, the evidence of record does not support his claim regarding this medical condition was the reason for his misconduct.  He had many legitimate avenues through which to obtain assistance without committing the misconduct which led to his discharge.  

2.  The evidence of record shows he received one Article 15 (misconduct), one summary court-martial for being disrespectful to his superior warrant officer, and one special court-martial for communicating a threat to his superior warrant officer and disobeying a lawful order.  He also has a record of 143 days of lost time. 

3.  Based on the seriousness of the misconduct for which the applicant was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  He contends his court-martial was unjustified because he was a sick man.  However, his disciplinary record of trials by court-martial (summary and special) were warranted by the gravity of the offenses charged.  The court-martial proceedings were conducted in accordance with law and regulations applicable at the time.  

6.   The character references provided by the applicant were acknowledged.  However, these statements alone are not a basis for upgrading his discharge.

7.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for a general or honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as undesirable.

8.  There is no evidence of record which indicates the actions taken in this case were in error or unjust.  Therefore, 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)                                         AR20130015815





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ABCMR Record of Proceedings (cont)                                         AR20130015815



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