IN THE CASE OF:  	  

		BOARD DATE: 9 October 2014	  

		DOCKET NUMBER:  AR20140000768 


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 general discharge (GD) to an honorable discharge (HD).

2.  The applicant states:

	a.  his discharge was improper because he received an Article 15 out of fear and duress in response to an isolated incident; 

   b.  in effect, he also received a field grade Article 15 due to lack of training and his inability to drive a tractor trailer;
   
   c.  he wants to remove the stigma from the characterization of his discharge in order to frame and hang it in his home to share his Army experiences with his grandchildren; and
   
d.  he is approaching 65 years of age and desires to proudly display his 
patriotism as a Vietnam veteran and Soldier.

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 11 March 1969.  He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following six dates as indicated:

* 21 June 1970 – for:

o leaving his guard post on 19 June 1970
o being found asleep on his post on 18 June 1970
o dereliction on 12 June 1970

* 25 July 1970, for being absent without leave (AWOL) from on or about      9 – 16 July 1969
* 19 August 1970, for being AWOL on 16 August 1970
* 24 August 1970, for disobeying a lawful order
* 8 September 1970, for twice disobeying or violating a lawful order on 25 and 29 August 1970
* 20 September 1970, for disobeying a lawful regulation on 9 September 1970

4.  On 12 September 1970, the applicant was command referred for and underwent a psychiatric examination that showed:

   a.  the applicant claimed he had a hot temper, resented "being treated like an animal," desired an honorable discharge, and was not to blame for problems in the Army;
   b.  his mental status evaluation revealed:

* he was fully oriented, alert, anxious
* he had normal motor behavior
* his speech was coherent
* his mood was neutral
* his affect was appropriate
* there was no evidence of thought disorder, psychosis, or neurosis 
* his memory was intact, judgment was adequate, and he had minimal insight
* he was mentally responsible, able to distinguish right from wrong, and able to adhere to the right
* had the mental capacity to understand and participate in board  proceedings
* he was recommended for separation from service under Army Regulation 635-212 (Personnel Separations (Discharge Unfitness and Unsuitability)

   c.  he was diagnosed:
   
* immature personality (aggressiveness, chronic-moderate, manifested by difficulty with authority)
* minimal stress (routine military duties in combat zone)
* moderate predisposition (inability to tolerate authority)
* moderate impairment (line of duty: No, not due to own misconduct)
* existed prior to service

d.  the opinion of the examiner was that the applicant's condition was not 
amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military.  It was unlikely to rehabilitate or develop him into a satisfactory member of the military, and he recommended his separation from the military.

5.  On 11 September 1970, the applicant's unit commander recommended him for discharge under the provisions of Army Regulation 635-212 by reason of unfitness.  He cited four of the applicant’s Article 15s, his psychiatric evaluation, and his failure to respond to counseling as the basis for this action.

6.  On 12 September 1970, the applicant consulted with legal counsel and after being advised of his rights and of the basis for the contemplated separation action, its effects, and his rights to a board of officers, personal appearance before a board of officers, and to representation by counsel, he elected not to make a statement in his own behalf.
7.  On 26 October 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unsuitability and directed the applicant receive a GD.  On 29 October 1970, the applicant was discharged accordingly.

8.  The DD Form 214 he was issued shows he completed 1 year, 6 months, and 9 days of creditable active service of which 9 months and 12 days was foreign service performed in Vietnam.  It further shows he was discharged under the provisions of Army Regulation 635-212.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b stated an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

11.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, provides that an HD 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.

12.  Paragraph 3-7b, provides that a GD 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 HD.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his GD should be upgraded to an HD.  There is insufficient evidence to support this claim.

2.  The evidence of record confirms that only after the applicant accepted NJP on six separate occasions for a myriad of infractions did his unit commander initiate separation action against him.  He was properly advised by his commander and afforded the opportunity to consult with counsel and to be advised of his rights in connection with the separation action prior to completing an election of his rights. 

3.  The record further shows that after being counseled on his rights, the applicant voluntarily elected to waive his right to consideration of his case by a board of officers.  As a result, it is clear his administrative separation for unsuitability was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20140000768





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ABCMR Record of Proceedings (cont)                                         AR20140000768



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