IN THE CASE OF:	  

		BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20140000853 


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 upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  He states:

* he is filing for an upgrade of his discharge in order to obtain health care
* he submitted three DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he had two periods of honorable service
* at the time of his under other than honorable conditions discharge, he was undergoing a lot of emotional problems
* he went absent without leave (AWOL) a lot
* he was dealing with what he felt was a lot of peer pressure due to his being African-American and he did not handle it well
* he was told if he stayed out of trouble for 3 months, his discharge would be upgraded to a general discharge, under honorable conditions

3.  He provides:

* three DD Forms 214 
* a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)



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 District of Columbia Army National Guard (DCARNG) and was ordered to active duty on 20 July 1964.  He was released from active duty on 18 December 1964, after serving on active duty for 4 months and 29 days.

3.  He enlisted in the Regular Army (RA) on 15 January 1965 and served until he was honorably discharged on 23 January 1966 for the purpose of immediate reenlistment after serving on active duty for a total of 1 year, 6 months, and 
4 days.

4.  On 24 January 1966, he reenlisted in the RA.

5.  The applicant's record includes a disciplinary history which shows his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:

* failure to obey a lawful order on 10 September 1966
* failure to go to his appointed place of duty on 2 November 1966
* three occasions of AWOL from 22 to 28 May 1966, 8 October 1967, and 23 December 1967 

6.  The applicant's record contains a copy of:

   a.  Headquarters, 2d Battalion, 3d Artillery Regiment, 3d Armored Division, Special Court-Martial (SPCM) Order Number 1, dated 21 January 1967, which shows he pled guilty and was found guilty of:
   
   	(1)  two specifications of breaking restriction on 15 November 1966 and 
6 December 1966; and 
   	(2)  two specifications of  being AWOL from 15 to 30 November 1966 and 
6 December 1966 to 5 January 1967.

   b.  Headquarters, 2d Infantry Division, SPCM Order Number 21, dated 
13 November 1967, which shows he pled not guilty but was found guilty of:
   
   	(1)  being incapacitated for the proper performance of his duties on 
15 October 1967; and 
   
   	(2)  two specifications of breaking restriction on 15 and 19 October 1967. 
   
   c.  Headquarters, 2d Infantry Division Artillery, SPCM Order Number 1, dated 
27 January 1968, which shows he pled guilty and was found guilty of being AWOL from 5 to 11 January 1968. 
   
   d.  Headquarters, 2d Infantry Division, SPCM Order Number 4, dated 
5 July 1968, which shows he pled guilty and was found guilty of being AWOL from 29 June to 1 July 1968. 
   
7.  On 14 May 1968, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-212 for unfitness with an Undesirable Discharge Certificate.  The applicant's immediate commander stated the discharge was being recommended due to the applicant's habits and traits of character manifested by repeated incidents of AWOL and breaking of restriction.  His separation packet contained a statement that he had  two convictions by SPCM, had been punished on two occasions under Article 15, UCMJ, and a Record of Counseling that stated he had been counseled on four occasions due to misconduct.

8.  On 16 May 1968, the Neuropsychiatric Service, 121st Evacuation Hospital, psychiatrically cleared the applicant for any administrative actions deemed necessary by his chain of command.

9.  On 1 June 1968, the applicant's immediate commander advised him that he was recommending that the applicant be separated under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.

10.  On 1 June and 2 July 1968, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration of his case by a board of officers and waived a personal appearance.  The applicant indicated he was submitting statements in his own behalf and that he waived representation by counsel.  The applicant acknowledged that he understood as a result of the issuance of an undesirable discharge he could expect to encounter substantial prejudice in civilian life, that   he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.

11.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 due to unfitness with the issuance of an Undesirable Discharge Certificate.  On 2 August 1968, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 2 years, 11 months, and 10 days of total active service with 389 days of time lost.

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

13.  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 of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of 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.

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time provides in:

	a.  paragraph  3-7 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's record shows he received five Article 15s and four special court-martial convictions.  The evidence of record shows an extensive amount of time lost due to AWOL.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  There is no evidence nor did the applicant submit any evidence that shows he informed his chain of command or anyone else that he was undergoing peer pressure related to his being African-American.  A mental health evaluation found he was fit for separation.

3.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for unfitness.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

4.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20140000853





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ABCMR Record of Proceedings (cont)                                         AR20140000853



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