IN THE CASE OF:	

		BOARD DATE:	  22 May 2014

		DOCKET NUMBER:  AR20130017027


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 discharge be upgraded to an under honorable conditions (general) discharge.

2.  The applicant states Sergeant First Class (SFC) Jxxxxxx threatened him and others because they found him asleep on duty.  SFC Jxxxxxx lied to his commanding officer about their conduct.  The applicant concludes he was upset at the time of inquiry and just wanted to get away from the Army.

3.  The applicant provides 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.  On 5 June 1969, the applicant enlisted in the Regular Army.  He completed his initial entry training and was awarded military occupational specialty 36C (Lineman).  

3.  On or about 22 November 1969, following the completion of his initial entry training, he was assigned to Fort Lewis, WA.

4.  On or about 23 January 1971, he was assigned to Company B, 33rd Signal Battalion (Army), Fort Richardson, AK.

5.  On 18 February 1971, before a summary court-martial at Fort Lewis, WA, he was convicted of absenting himself from his unit from on or about 20 December 1970 through 5 February 1971.

6.  On 9 April 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit from on or about 5 April through 6 April 1971 and for disobeying a lawful order from a senior noncommissioned officer (NCO), on or about 5 April 1971.  

7.  On 27 April 1971, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go, at the prescribed time, to his appointed place of duty on or about 18 April 1971.

8.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his Military Personnel Records Jacket (MPRJ) contains a third endorsement, dated 31 August 1971 and signed by the Commander, U.S. Army Alaska, which shows:

* he waived the requirement for the applicant to appear before a board of officers
* he waived the requirement for the applicant to be reassigned
* he directed the applicant's separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), and further directed the applicant receive an Undesirable Discharge Certificate

9.  On 8 September 1971, the applicant was discharged from the Army under the provisions of Army Regulation 635-212.  The DD Form 214 he was issued shows:

* he was discharged in the rank/pay grade of private/E-1
* he was assigned Separation Program Number 28B (Unfitness – frequent involvement in incidents of a discreditable nature with civil or military authorities) 
* he received an under other than honorable conditions character of service
* he was issued an Undesirable Discharge Certificate

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness and unsuitability.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; 
c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

12.  Army Regulation 635-200 (Personnel Separations), now in effect, sets forth the basic authority for the separation of enlisted personnel.  

   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 contends his discharge should be upgraded.  He further contends he and other men in his unit were threatened by a senior NCO, who lied to their commander about their conduct.  His available record does not 
support his contention and does not provide any evidence that suggests his accusation is in any way true.

2.  His record is void of the complete facts and circumstances surrounding his discharge; however, his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212, by reason of unfitness; he received an under other than honorable conditions character of service; and he received an Undesirable Discharge Certificate.

3.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory; therefore, he is not entitled to a general discharge or an honorable 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)                                         AR20130017027



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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