IN THE CASE OF:
BOARD DATE: 7 October 2014
DOCKET NUMBER: AR20140003526
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 that his general discharge be upgraded to a fully honorable discharge.
2. The applicant states "that an administrative miscommunication ensued which prompted hastily conducted character of service following a court-martial." He goes on to state that it was due to an assault charge and he does not feel that the punishment (discharge) fit the crime.
3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).
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 on 21 July 1967 for a period of 3 years and training as a water supply specialist. He completed basic training at Fort Polk, Louisiana and advanced individual training at Fort Leonard Wood, Missouri before being transferred to Vietnam on 18 December 1967.
3. On 25 November 1968, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order from a noncommissioned officer.
4. On 14 December 1968, he departed Vietnam for assignment to Fort Carson, Colorado.
5. On 25 August 1969, NJP was imposed against him for failure to go to his place of duty.
6. On 4 January 1970, he was transferred to Korea for assignment to the 2nd Engineer Battalion.
7. During the period 23 January and 1 December 1970, NJP was imposed against the applicant on at least five separate occasions for offenses consisting of being disrespectful in language towards a noncommissioned officer, multiple failures to go to his place of duty, disobeying lawful orders, and disobeying a lawful command from a commissioned officer.
8. On 6 January 1971, he was convicted by a special court-martial of the wrongful possession of 7.2 grams more or less of marijuana and being absent without leave (AWOL) from 24 to 26 December 1970. He was sentenced by a military judge to receive a Bad Conduct Discharge (BCD), a forfeiture of $80.00 pay for 4 months, confinement at hard labor for 4 months, and reduction to pay grade E-1.
9. On 6 March 1971, the convening authority approved the sentence and directed that the record of trial be forwarded to the Court of Military Review. It was also directed that the applicant be confined at Fort Lewis, Washington pending the appellate review.
10. On 12 April 1971, the applicant submitted a request for excess leave pending the appellate review of his case and it was approved on 13 April 1971. He departed on excess leave on 16 April 1971.
11. On 22 May 1972, at Fort Lewis, Washington, the applicant was discharged under other than honorable conditions, in accordance with the provisions of Special Court-Martial Order Number 83, dated 8 May 1972, issued by Headquarters, U.S. Army Training Center, Fort Lewis, Washington. He was issued a Bad Conduct Discharge. He had served 4 years, 6 months, and 11 days of active service and he had 111 days of lost time due to being AWOL and in confinement; he also had 397 days of excess leave.
12. On 17 January 1978, the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. In the processing of his case a legal opinion was requested that indicated the Court of Military Review did not approve that portion of this sentence pertaining to a BCD. Accordingly, the reason and authority and the characterization of his service required changes and the Reserve Component Personnel Administration Center (RCPAC) had the authority to re-characterize his service to honorable or general.
13. On 12 February 1979, officials at RCPAC notified the applicant he should have received a general discharge on 22 May 1972 and he was provided a General Discharge Certificate and a DD Form 214 showing he was discharged under honorable conditions under the provisions of Army Regulation 635-200, due to separation for other good and sufficient reasons as determined by Secretarial Authority (Separation Program Number 21L).
14. A review of his official records failed to reveal copies of the Court of Military Review or Special Court-Martial Order Number 83.
15. Army Regulation 635-200 (Personnel Separations) set forth the basic authority for the separation of enlisted personnel for the convenience of the government. Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretarys discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such order.
16. Army Regulation 635-200, paragraph 3-7a, states 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.
17. Army Regulation 635-200, paragraph 3-7b, states 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 applicants contention that his discharge was too harsh for his crime has been noted and appears to lack merit.
2. Notwithstanding that he was improperly discharged with a BCD, which was subsequently corrected by issuing him a general discharge, the applicants record of service does not, even if his court-martial conviction is discounted, amount to fully honorable service.
3. It appears the proper action at the time would have been to terminate the applicants excess leave and return him to duty for processing for misconduct, which would have in all likelihood resulted in him being discharged under other than honorable conditions. However, a decision was made at the time to separate the applicant under Secretarial Authority.
4. Accordingly, given his repeated misconduct throughout his service, there is an insufficient evidentiary basis for granting the applicant 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 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) AR20140003526
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ABCMR Record of Proceedings (cont) AR20140003526
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