IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140011741 


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, in effect, an upgrade of his undesirable discharge to an honorable or a general discharge.

2.  The applicant states:

* He should never have been inducted into the Army
* He only weighed 130 pounds and after his fourth physical he suddenly gained 20 pounds and was inducted
* 3 years later he still weighed the original 130 pounds
* He was ineligible to get out of the Army unless he gain the 20 pounds that was added to the 130 pounds that had been erased with “150” written over it
* He should have been classified "4F" because of his build
* He has a document that shows he weighed 135 pounds in September 1973 and another document that is stamped 1971 which shows he weighed 135 pounds and the fluctuations don't add up
* Any help correcting his military file so he may be able to receive any benefits available to him or his son would be appreciated

3.  The applicant provides a handwritten letter addressed "Dear Reg. Office:" dated 23 June 2014.




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 underwent a medical examination on 21 September 1971, for the purpose of enlistment in the Regular Army.  His Report of Medical Examination shows that at the time he weighed 135 pounds and he was found to be qualified for enlistment in the Army.

3.  The applicant's Official Military Personnel File (OMPF) contains a DD Form 369 (Police Record Check), dated 18 October 1971, which shows his weight as 135 pounds.

4.  On 28 October 1971, he enlisted in the Regular Army for 3 years.  He completed training as a track vehicle mechanic.

5.  The applicant accepted nonjudicial punishment (NJP) on three separate occasions between 2 November 1972 and 9 February 1973 for the following offenses:

* Failure to go to his appointed place of duty
* Possession of a prohibited item (a blank pistol)
* Possession of 54 grams of marijuana in the form of hashish
* Possession of 7 grams of marijuana in the form of hashish
* Disobeying a lawful order

6.  On 7 December 1973, the applicant was convicted by a special court-martial of the following offenses:

* Possession of 4 grams, more or less, of a controlled substance (marijuana)
* Possession of four tablets of a controlled substance (Mandrax)
* Possession of a switchblade knife
7.  The facts and circumstances surrounding the applicant's discharge are not available.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 8 February 1974, under other than honorable conditions, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13-5a(1), for unfitness due to frequent involvement in incidences of a discreditable nature with military or civil authorities.  He completed 2 years, 1 month, and 23 days of net active service this period.  He received an Undesirable Discharge Certificate.

8.  A review of the applicant's record fails to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.

	a.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  His records show that at the time of his enlistment in the Army he weighed 135 pounds.  However, prior to his enlistment, he underwent a medical examination and he was found to be medically qualified for enlistment.

3.  His records also show he accepted NJP on three separate occasions and he was convicted by a special court-martial as a result of his numerous offenses.  He has not shown that the fact that he weighed 135 pounds was the cause of his criminal acts while he was in the Army.  Although he may now believe that he should never have enlisted (he was not inducted), he did enlist in the Army and the type of discharge he received properly reflects his overall record of service.

4.  The applicant has not shown error or injustice in the actions taken by the Army in his case.

5.  In view of the foregoing, there is no basis for granting him 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 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)                                         AR20140011741



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ABCMR Record of Proceedings (cont)                                         AR20140011741



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