BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130016645 


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 undesirable discharge (UD) to a general discharge. 

2.  The applicant states he was falsely accused of something which he did not do.  He was pushed into signing some forms by the inspector general.  His conduct in the Army was good.  He wants his Army record to reflect that he was a good Soldier.

3.  The applicant provides two characters reference letters.

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, in pay grade E-1, on 16 December 1966, for 3 years.  He did not complete advanced individual training for award of a military occupational specialty.

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on/for:

* 21 January 1967 – wrongfully throwing his rifle to the ground
* 10 March 1967 – failing to maintain his personal hygiene and equipment in the prescribed manner

4.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 10 March 1967, shows an investigation was pending under the provisions of Army Regulation 635-89 (Homosexuality).

5.  A Certificate, dated 13 March 1967, shows the applicant underwent a neuropsychiatric examination.  He was diagnosed with a sexual deviation, homosexuality (basis of history only).  The examining psychiatrist stated the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He recommended the applicant be administratively separated under the provisions of Army Regulation 635-89.  This certificate was later withdrawn from the board proceedings due to separation under the provisions of Army Regulation 635-212 (Unfitness).

6.  On 14 March 1967, the applicant's company commander recommended the applicant's discharge because of lewd and lascivious acts under the provisions of Army Regulation 625-212, with a UD.  The company commander stated the applicant was assigned to that company for remedial training.  Since the applicant's arrival he had been a continuous disciplinary problem and exhibited a very disrespectful and belligerent attitude.  He advised the applicant of his rights.

7.  On 27 March 1967, the applicant's battalion commander recommended approval of the applicant's discharge.

8.  On 3 April 1967, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He also acknowledged he could receive a UD and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf. 

9.  On 11 April 1967, the separation authority approved his discharge and directed the issuance of an Undesirable Discharge Certificate.
10.  Accordingly, he was discharged in pay grade E-1 on 17 April 1967.  He was credited with completing 4 months and 2 days of net active service with no time lost.

11.  On 7 April 1970, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  He provided two character reference letters wherein the individual attested to the applicant being an active member of the Cliffside Park Lodge and the Knights of Columbus.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability.  The regulation stated an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, a UD was normally considered appropriate.

14.  Army Regulation 635-200 (Personnel Separations) states in:

   a.  Paragraph 3-7a - an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member’s service generally meets the standards of acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

   b.  Paragraph 3-7b - a general discharge is a separation from the Army under honorable condition.  When authorized, it is issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's company commander recommended the applicant's discharge for unfitness.  The company commander stated the applicant had been assigned to that company for remedial training and since his arrival he had been a continuous disciplinary problem and exhibited a very disrespectful and belligerent attitude.  The applicant acknowledged the proposed separation action and issuance of a UD.  The separation authority approved his discharge and on 17 April 1967, he was discharged accordingly.


2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  Without evidence to the contrary, it appears his administrative discharge was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to the 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)                                         AR20130016645



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ABCMR Record of Proceedings (cont)                                         AR20130016645



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