IN THE CASE OF: 

		BOARD DATE:	    15 July 2014

		DOCKET NUMBER:  AR20130020121 


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 to an honorable discharge.

2.  The applicant states, in effect, he had just turned 18 years old and he was a former gang member from the inner city (public housing) in Philadelphia who made a bad decision.  It has haunted him his entire adult life during which time he has been a model citizen.  He and another Soldier got into a physical altercation with about 4or 5 other Soldiers of Indian descent.  The other Soldiers had begun calling them names and instead of walking away they probably were the ones who started the fight.  He has done a lot of volunteer services over the past 30 years.  He lists several organizations with which he has been involved, other activities, and recognition as a "Citizen of the Year" since his discharge from the military.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and Department of Veterans Affairs (VA) Form 21-4138 (Statement of Support of Claim).

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 18 September 1970, he enlisted in the Regular Army.  He was age 
17 when he enlisted with the consent of his mother.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he held was private two/pay grade E-2.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 28 January 1971, for failing to obey a lawful general regulation
* 12 July 1971, for striking another Soldier with his fist
* 19 July 1971, for breaking restriction on two occasions

4.  His leadership provided the following information in separate statements or certificates in support of separating the applicant from the military.

   a.  His platoon sergeant stated the applicant's attitude and job performance since he had been with the platoon had been very poor.  He would absent himself from the platoon without permission from his squad leader.  He had to be constantly told to get a haircut, shave, or dress in a more military manner.  His attitude was that he didn't care about his leaders or the people he worked with.
   
   b.  His platoon leader stated the applicant had continuously caused trouble since he joined the platoon.  He refused to carry out orders.  He stated the applicant had admitted to him that for no evident reason he assaulted a person in the battalion.  He missed formations and reported for formation in a condition unable to perform his duties.  He was sent to sick call and it was reported by the battalion surgeon that he was suspected to be under the influence of narcotics.  He has also asked to be given a discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) or a bad conduct discharge and threatened to cause trouble until he was out of the Army.  He further stated the applicant was given an opportunity to attend school but was dropped from the class for failure to attend classes.
   
   
   
   c.  His commander recommended he be separated under the provisions of Army Regulation 635-212 as unfit.  He stated the applicant had been involved in several incidents since his arrival in the company which had been a discredit to the unit and the Army.
   
5.  A Report of Mental Evaluation shows the examiner found the applicant to be mentally responsible both to distinguish right from wrong and to adhere to the right and to have the mental capacity to understand and participate in board proceedings. 

6.  The applicant's commander recommended the applicant's discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities and an established pattern for shirking.

7.  On 27 July 1971, the applicant was advised by counsel of the basis for his contemplated separation, its effects, and the rights available to him.

8.  After consulting with counsel, he waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He elected not to submit statements in his own behalf and he waived representation by counsel.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further acknowledged he understood that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

9.  On 9 August 1971, the separation authority approved his discharge as recommended and directed the issuance of an Undesirable Discharge Certificate.  On 13 August 1971, he was discharged as directed with an Undesirable Discharge Certificate.  He was assigned Separation Program Number (SPN) 28B (frequent involvement in incidents of a discreditable nature with civil or military authorities) and SPN 386 (an established pattern of shirking).  He completed 10 months and 26 days of total active service.  

10.  On 30 August 1972, The Adjutant General informed the applicant that the Army Discharge Review Board had determined he was properly discharged.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently 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 available evidence does not support the applicant's request to change his characterization of service to honorable.

2.  The applicant was age 17 when he enlisted with his mother's consent.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  There is also no evidence that his family circumstances affected his ability to serve.  

3.  He received NJP under the provisions of Article 15, UCMJ for failing to obey a lawful general regulation, for striking another Soldier with his fist, and for breaking restriction on two occasions.  The applicant's leadership indicated his attitude and job performance was very poor; he absented himself from the platoon without permission; he had to be constantly told to get a haircut, shave, or dress in a more military manner; he had continuously caused trouble since he joined the platoon; he refused to carry out orders; and he had admitted for no evident reason he assaulted a person in the battalion.  It was also stated that he missed formations and reported for formation in a condition unable to perform his duties.  It was further stated that he asked to be given a discharge under the provisions of Army Regulation 635-212 or a bad conduct discharge and threatened to cause trouble until he was out of the Army.  Clearly, his commander was justified in recommending that he be discharged for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities and an established pattern of shirking.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  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)                                         AR20130020121



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130020121



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1