IN THE CASE OF:	  

		BOARD DATE:	  13 January 2015

		DOCKET NUMBER:  AR20140008387 


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 his discharge characterization be changed from under other than honorable conditions to honorable.

2.  He states he entered the Army at a young age and had a rocky start.  He offers that during his almost two years in the Army, he had minor disciplinary run-ins with his superiors prior to completing basic training, but he still managed to receive high honors in physical training and basic soldiering.  He states after completion of advanced individual training he was sent to Vietnam where he served for almost 11 months.  He opines that most of his shortcomings in the military were due to his age and life experiences.  He concludes that he has lived an exemplary life style with no major incidents and deserves consideration for a discharge upgrade.

3.  He provides:

* Self-authored statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 215 (Correction to DD Form 214)
* Letter to his sister

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 9 February 1967 at the age of 21 years and 4 months.  He served in Vietnam from 
19 December 1967 to 22 October 1968.

3.  His disciplinary history includes his acceptance of nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice on:

* 15 April 1967, for being absent without leave (AWOL) from 8 April to 
11 April 1967 
* 15 June 1967, for being derelict in the performance of his duties on
13 June 1967
* 22 June 1967, for failure to repair on 16, 17, and 18 June 1967
* 27 July 1967, for wrongfully communicating a threat to a private on 25 July 1967
* 5 January 1968, for failure to go at the time prescribed to his appointed place of duty and absenting himself from his place of duty on 3 January 1968, and failure to follow his first sergeant’s order on 3 January 1968

4.  Summary Court-Martial Order Number 93 "Corrected Copy," dated 5 July 1967, shows that he was found guilty of breaking restriction on two separate occasions:  25 and 26 June 1967.  He was sentenced to confinement at hard labor for 20 days, a forfeiture of $60.00 pay per month for a month, and reduction to the rank/grade of private (PVT)/E-1.  The sentence was adjudged on 30 June 1967.

5.  Summary Court-Martial Order Number 111 "Corrected Copy," dated 9 August 1967, shows he was found guilty of breaking restriction on 28 July 1967. He was sentenced to confinement at hard labor for 1 month and a forfeiture of $60.00 pay per month for 1 month.  The sentence was adjudged on 4 August 1967.

6.  Special Court-Martial Order Number 112, dated 3 September 1967, shows he was found guilty of unlawfully striking a specialist on the neck with his arm and failure to obey a lawful order from a specialist on 5 August 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $60.00 pay per month for 6 months.  The sentence was adjudged on 29 August 1967.

7.  On 4 October 1967, the unexecuted portion of the sentence to confinement at hard labor for 6 months was suspended for 5 months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

8.  On 7 August 1968, the applicant underwent a psychiatric evaluation at the U.S. Army Vietnam Stockade.  The psychiatrist found that there was no psychiatric disease or defect which warranted disposition through medical channels.  He was recommended for administrative separation from the military under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). 

9.  On 11 August 1968, the unit commander notified the applicant of his intent to recommend his separation from the Army under the provisions of Army Regulation 635-212 for unfitness.

10.  On 14 August 1968, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, to personal appearance before a board of officers, and to counsel.  He also elected not to submit statements on his behalf.

11.  He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued.  He further understood that as the result of an undesirable discharge under other than honorable conditions, he may 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.

12.  On 31 August 1968, the unit commander recommended that the applicant be required to appear before a board of officers for the purpose of determining whether he should be discharged before the expiration of his term of service.  The commander stated that the applicant's discharge was because of his habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.  However, his record is void of any evidence that shows he appeared before an administrative board.

13.  On 26 September 1968, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 for unfitness.  He directed that the applicant be furnished an Undesirable Discharge Certificate.

14.  His DD Form 214 shows he was discharged under conditions other than honorable on 22 October 1968 and issued an Undesirable Discharge Certificate. The reason and authority for discharge was listed as Army Regulation 635-212. He completed 1 year, 2 months, and 19 days of total active service with 166 days of lost time.

15.  On 22 February 1978, he appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 18 September 1979, the ADRB denied his request for a discharge upgrade citing that he was properly discharged.  However, the board determined that the reason and authority for his discharge should be changed from Army Regulation 635-212 to Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(2) misconduct, an established pattern for shirking.  He was issued a DD Form 215 accordingly.

16.  The applicant provided a letter he wrote to his sister while assigned in Vietnam where he describes his everyday duties.  He explained to his sister that he was very busy with his duties.  He stated that if she did not hear from him, to continue writing and he would return her letters when he got the chance.

17.  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.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include acts of misconduct and patterns of misconduct such as (1) frequent incidents of discreditable nature with civil or military authorities; (2) an established pattern for shirking; (3) an established pattern showing dishonorable failure to pay just debts; and (4) an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

   b.  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.

   c.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The records show the applicant was 21 years and 4 months of age at the time of his induction and 23 years of age at the time of his discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  Evidence of record shows he was originally separated for "unfitness" as recommended by the commander for "his habits and traits of character manifested by repeated commission of petty offenses and habitual shirking."  However, the ADRB determined that the reason and authority for his discharge should be changed from Army Regulation 635-212 to Army Regulation 635-200, chapter 14, misconduct, an established pattern for shirking, which is consistent with the conditions cited in the regulation.   

3.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

4.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general 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)                                         AR20140008387





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ABCMR Record of Proceedings (cont)                                         AR20140008387



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