IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140008152 


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 he was good at his job, but two noncommissioned officers displayed prejudice toward him.

3.  The applicant provides no additional evidence.

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 29 January 1971, the applicant enlisted in the Regular Army.  He completed basic combat training and began advanced individual training in military occupational specialty 31M (Radio Relay Carrier), but failed to complete the training.

3.  On 7 June 1971, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for not being at his appointed place of duty on 4 June 1971.

4.  On 18 June 1971, he received NJP for breaking restriction on 11 June 1971.

5.  On 9 August 1971, he received NJP for being absent from his assigned post on 5 August 1971.

6.  On 24 August 1971, he received NJP for willfully disobeying a lawful order from a staff sergeant on 21 August 1971.

7.  On 3 September 1971, he received NJP for willfully disobeying a lawful order from his platoon sergeant on 27 August 1971 and for failing to be at his appointed place of duty on both 30 August 1971 and 1 September 1971.

8.  On 12 October 1971, he was convicted by a special court-martial of willfully disobeying a lawful order given by his platoon sergeant on 10 September 1971.  He was sentenced to forfeiture of $75 per month for 4 months and confinement at hard labor for 4 months at the U.S. Army Correctional Holding Detachment, Fort Gordon, Georgia.

9.  A Report of Mental Status Evaluation, dated 19 October 1971, shows there were no disqualifying mental defects sufficient to warrant disposition through medical channels and he had the mental capacity to understand and participate in board proceedings.

10.  On 29 October 1971, the applicant's commander notified him that he had initiated action to separate him from the service for unfitness.  The specific allegations which were the basis for the proposed action were a special court-martial conviction and five counts of NJP under the provisions of Article 15.

11.  On 1 November 1971, he acknowledged that he was advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  He acknowledged he might be ineligible for many or all benefits as a veteran under both Federal and State laws if an undesirable discharge under conditions other than honorable were issued to him.  The applicant then waived his rights.  He did not submit a statement in his own behalf.

12.  On 1 November 1971, his chain of command recommended his discharge from the military under the provisions of Army Regulation 635-212 for unfitness with an undesirable discharge.

13.  On 16 November 1971, the appropriate authority approved the recommendation and directed the issuance of an Undesirable Discharge Certificate.

14.  On 26 November 1971, he was given an undesirable discharge under the provisions of Army Regulation 635-212 with a separation program number of 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities).  His service was characterized as under conditions other than honorable.  His DD Form 214 shows he completed a total of 7 months and 12 days of active military service.

15.  He applied to the Army Discharge Review Board for an upgrade of his discharge and his request was denied on 29 May 1985.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  It stated an individual was subject to separation for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) set forth the basic authority for the separation of enlisted personnel.

	a.  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.

	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 request for upgrade of his discharge to honorable was carefully considered.  However, the evidence of record does not support his request.

2.  There is no evidence in the available records that the applicant's NJP, special court-martial conviction, or subsequent undesirable discharge were the result of prejudicial acts against him.

3.  He was discharged under the provisions of Army Regulation 635-212 by reason of unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  His records show he received NJP on five occasions and he was convicted by a special court-martial.  These frequent instances of indiscipline clearly show he did not meet the standards of acceptable conduct and performance of duty for military personnel.  This misconduct rendered his service unsatisfactory.

4.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

5.  In view of the foregoing, he is not entitled to an upgrade of his undesirable discharge to an honorable or a general 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)                                         AR20140008152



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ABCMR Record of Proceedings (cont)                                         AR20140008152



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