IN THE CASE OF:	  

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140012759 


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.

2.  The applicant states he was convicted by a court-martial for no reason.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 9 February 1967.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on three separate occasions for the following offenses:

* disobeying a lawful order from his superior noncommissioned officer
* failing to go at the time prescribed to his appointed place of duty
* receiving stolen U.S. currency of a value of about $80.00
* failing to report to his appointed place of duty

4.  His record also reveals a disciplinary history that includes a conviction by a special court-martial, contrary to his pleas, of striking a U.S. Navy Sailor on the head with his fist and for being disorderly in command by using loud and boisterous language in front of the Tripler Army Medical Center.  He was sentenced to confinement at hard labor for four months and forfeiture of $73.00 pay per month for four months, and reduction to the grade of private/E-1 (PV1).  The court-martial authority approved so much of the sentence pertaining to forfeiture of $73.00 of his pay for three months, confinement for three months of hard labor, and reduction to PV1.

5.  Special Court Martial Order Number 33, dated 4 September 1968, suspended the unexecuted portion of the approved sentence to confinement at hard labor for three months and forfeiture of $73.00 pay for three months unless sooner vacated.

6.  On 9 January 1969, he underwent a neuropsychiatric examination and was diagnosed as having passive-aggressive personality, manifested by negative attitudes, poorly controlled temper, impulsivity, and repeated disciplinary difficulties.  The psychiatrist recommended that no further attempt at rehabilitation of this individual be made since it was believed that he could not be rehabilitated to the extent where it could be expected that he could become a satisfactory Soldier.  The psychiatrist recommended separation from the military service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).

7.  On 10 January 1969, the company commander notified the applicant of the proposed action for separation from the Army under the provisions of Army Regulation 635-212 by reason of unfitness.

8.  On 3 February 1969, he acknowledged notification of the proposed separation action.  He consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and did not submit statements in his own behalf.

9.  On 21 March 1969, the separation authority waived counseling and rehabilitation requirements, directed his discharge under the provisions of Army Regulation 635-212 with the issuance of an Undesirable Discharge Certificate, and reduction to the lowest enlisted grade.

10.  On 1 April 1969, he was discharged accordingly due to unfitness.  He completed 1 year, 11 months, and 28 days of active military service with 56 days of lost time due to confinement.

11.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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 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.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  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.

14.  Army Regulation 635-200, 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 contends that he was convicted by a court-martial for no reason.  However, his service record shows he was convicted by a special court-martial for the offense of striking a U.S. Navy Sailor on the head with his fist and for being disorderly in command by using loud and boisterous language in front of the Tripler Army Medical Center.

2.  The applicant's administrative separation under the provisions of Army Regulation 635-212 was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  His service record shows he received three Article 15s and one conviction by a special court-martial.

4.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable or general discharge and characterized his service as undesirable.

5.  The evidence of record does not indicate the actions taken in the applicant's case were in error or unjust.  Therefore, there is no basis for granting his request for an upgrade of his discharge from undesirable 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 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)                                         AR20140012759





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ABCMR Record of Proceedings (cont)                                         AR20140012759



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