BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140013265 


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:

The applicant defers to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's discharge, characterized as under other than honorable conditions, be upgraded to honorable or to general, under honorable conditions.  

2.  Counsel states:

	a.  The applicant made at least one prior request to the Army Review Boards Agency for an upgrade of his discharge, but at that time he was not represented by counsel, he did not request or review his complete personnel file, and he did not have access to or guidance regarding the requirements of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

	b.  It was not until the applicant retained pro bono counsel in June 2014 that he first obtained these materials and became aware of additional facts regarding his discharge.  

	c.  Per the clear requirements of Army Regulation 635-200, the applicant was not properly discharged because he did not receive the rehabilitation reassignment and counseling required under chapter 13 (Separation for Unfitness or Unsuitability) of the regulation.  Counseling was not waived by his chain of command or by the convening authority.
	d.  Although the convening authority attempted to waive the required rehabilitation reassignment, such rehabilitation was not waivable.  Because the new facts demonstrating the applicant was improperly discharged only recently came to light, is in the interest of justice that the Board considers and grants his renewed request for a discharge upgrade.  

	e.  The applicant voluntarily enlisted in the Army and he served almost 
3 years of his enlistment at Fort Bragg, North Carolina.  By his own admission he had difficulty adjusting to the Army and he struggled with discipline in a post-Vietnam era Army with well documented morale and disciplinary problems.  Between March 1971 and October 1973, he was either disciplined or received nonjudicial punishment (NJP) for being absent without leave (AWOL) on four occasions as well as two other minor offenses.  He was subsequently separated under the provisions of Army Regulation 635-200, paragraph 13-5a(1) (Unfitness, frequent incidents of a discreditable nature with civil or military authorities).  

	f.  The applicant's discharge required that an individual receive both counseling and rehabilitation prior to discharge.  While he received at least seven separate reprimands and/or NJP leading to his discharge, there is no record that he received rehabilitation or counseling for any of these offenses.  As a result, his discharge was improper and the classification of his discharge must be upgraded.

	g.  Paragraph 13-7 (Counseling) of Army Regulation 635-200 requires that prior to a discharge for unfitness a Soldier receive counseling, which includes, at a minimum, written evidence regarding the reason for the counseling, the fact that similar conduct may lead to discharge from the Army, and the nature and consequences of being discharged under other than honorable conditions.  Not only is there no written record that he was counseled for any of the offenses that led to his discharge, there is no record he received counseling prior to his discharge as to each of the elements required under paragraph 13-7.

	h.  While counseling may be waivable by the convening authority under limited circumstances prescribed by paragraph 13-9 (Waivers), his record is completely devoid of any evidence that the convening authority attempted to waive the counseling requirement of chapter 13.

	i.  Paragraph 13-8 (Rehabilitation) of Army Regulation 635-200 requires that a Soldier must receive at least one rehabilitation reassignment prior to being discharged for unfitness.  Although the applicant was reassigned to a new unit while at Fort Bragg, there is no indication in his records that his reassignment was for rehabilitation purposes.  Like counseling, rehabilitation may be waivable by the convening authority under limited circumstances prescribed by paragraph 13-9.  While the record is clear that the convening authority attempted to waive rehabilitation for the applicant, the purported waiver did not comply with paragraph 13-9.

	j.  According to paragraph 13-9, the convening authority may waive rehabilitation when separation is being considered under the provisions of paragraph 13-5a(2) (sexual perversion), (7) (homosexual acts), or b(5) (a pattern showing dishonorable failure to pay just debts).  As the applicant was discharged under paragraph 13-5a(1), this waiver provision is inapplicable.  The convening authority may also waive rehabilitation pursuant to paragraphs 13-9b and 9c where "he determines that further duty of the individual will, in his best judgment, create serious disciplinary problems or a hazard to the military mission or to the individual" or "he determines that the individual is obviously resisting all attempts to be rehabilitated or that rehabilitation will not produce the quality Soldier acceptable in the baseline force."  The applicant's records reflect no such findings by the convening authority and state only that his chain of command "waived rehabilitation."  Such a finding is not sufficient to support a waiver under the limited circumstances listed in paragraph 13-9 and, as a result, the attempted rehabilitation waiver was ineffective.

	k.  The failure to provide him with counseling and rehabilitation prior to his discharge constitutes significant error requiring a change in the character of his discharge.  By his own admission, he had difficulty adjusting to the Army and he would have benefitted from counseling or rehabilitation reassignment resulting in a fresh start with a new chain of command, the very reason for the counseling and rehabilitation requirements prior to discharge.  Problem Soldiers often benefit from continued, well-documented counseling and/or rehabilitation.  Had he received the required counseling and rehabilitation, he very likely may have served out his full enlistment and received an honorable discharge.

3.  Counsel 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.  The applicant enlisted in the Regular Army on 7 July 1971.  His DA Form 20 (Enlisted Qualification Record) shows that after completion of initial entry training, he was assigned to Company B, 2nd Battalion, 504th Infantry Regiment, Fort Bragg, North Carolina.

3.  He accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ):

* on 2 March 1972, for failing to go at the time prescribed to his appointed place of duty
* on 20 March 1972, for being AWOL for one day

4.  His DA Form 20 shows he was AWOL during the period 8-14 May 1972.

5.  On 25 May 1972, his immediate commander recommended he be issued a Certificate of Unsuitability for Reenlistment based on his substandard performance.  The commander stated he had counseled the applicant on numerous occasions and that he had advised him of the adverse consequences which might ensue from this or similar personnel actions.  Because the counseling had been to no avail, he was forwarding the certificate for approval.  All other rehabilitative actions had failed.

6.  On 26 May 1972, he completed a DA Form 2823 (Witness Statement) in which he expressed his desire to be discharge from the service as soon as possible.  He also stated the following:  "I believe that I have put forth an effort to adapt to the Army and I believe that the Army has attempted to help me in every way.  My units' commanders and counselors have tried to help me also but we have all fought a rather fruitless cause.  This I regret but hopefully my discharge from the service is in my best interest and in the best interest of the United States Army."

7.  On 19 July 1972, he was found guilty by a special court-martial of being AWOL during the period 8-15 May 1972.

8.  Special Orders Number 209, dated 19 October 1972, issued by Headquarters, 82nd Airborne Division, Fort Bragg, North Carolina, directed his reassignment to Company A, 2nd Battalion, 504th Infantry Regiment, Fort Bragg, North Carolina, effective 27 October 1972.

9.  His DA Form 20 shows that on 10 January 1973, he was reassigned to Headquarters and Headquarters Company, 1st Brigade, 82nd Airborne Division, Fort Bragg, NC.  

10.  He accepted NJP on 7 May 1973, for failure to obey a lawful order from a noncommissioned officer (NCO) and on 1 August 1973, for being AWOL during the periods 4-10 June 1973 and 2-10 July 1973.

11.  His DA Form 20 shows he was reassigned to the U.S. Army Personnel Control Facility, Fort Dix, New Jersey on 10 July 1973.

12.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows he departed AWOL on 7 August 1973 and he was apprehended by civilian authorities on 17 September 1973.

13.  On 20 September 1973, court-martial charges were preferred against him for the AWOL offense.

14.  On 27 September 1973, he consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10, due to charges preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood that:

* he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

15.  He accepted NJP on 3 October 1973, for being AWOL during the period       7 August-17 September 1973.

16.  On 4 October 1973, he requested to withdraw his request for discharge under the provisions of Army Regulation 635-200, chapter 10.  

17.  On 30 October 1973, his commander recommended his separation from the service under the provisions of Army Regulation 635-200, chapter 13, for unfitness.  The commander based his recommendation on the applicant's 
repeated incidents of confirmed AWOL, his lack of motivation for continued service, and his failure to respond to counseling and rehabilitation.  His commander pointed out that he was given the opportunity to participate in different units under different commanders resulting in disciplinary action.

18.  On 22 February 1974, the applicant consulted with legal counsel and was advised of the basis for the proposed separation action.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He elected not to submit a statement in his own behalf.  He also acknowledged he understood that as a result of the issuance of a general under honorable conditions discharge he might expect to encounter substantial prejudice in civilian life.  He further acknowledged that as a result of issuance of an undesirable discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.

19.  On 14 March 1974, the appropriate authority waived further counseling and rehabilitation and approved the recommendation for separation.  The separation authority directed the issuance of an Undesirable Discharge Certificate.  

20.  On 1 April 1974, he was discharged under the provisions of Army Regulation 
635-200, paragraph 13-5a(1), for unfitness, with his service characterized as under conditions other than honorable.  His DD Form 214 (Report of Separation from Active Duty) shows he accrued 62 days of lost time.  

21.  The Army Discharge Review Board denied his request for an upgrade of his undesirable discharge on 10 November 1988.

22.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  

	a.  Chapter 13, in effect at the time, applied to separation for unfitness and unsuitability.  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 13-6 states that commanders will ensure that before taking separation action against an individual under the provisions of this chapter, adequate counseling and rehabilitation measures have been taken.  

	c. Paragraph 13-7 states that when an individual's behavior has been such that continued behavior of a similar nature may warrant actions against him, the individual will be counseled by a responsible person or persons.  Each counseling session will be recorded.

	d.  Paragraph 13-8 states that as minimum, individuals will be reassigned at least once, with a minimum of 2 months of duty in each unit.  

	e.  Paragraph 13-9b states the general court-martial convening authority may waive the requirements of paragraphs 13-7 and 13-8 when he determines that further duty of the individual will, in his best judgment, create serious disciplinary problems or a hazard to the military mission or to the individual.

	f.  Paragraph 13-9c states the general court-martial convening authority may waive the requirements of paragraphs 13-7 and 13-8 when he determines that the individual is obviously resisting all attempts to be rehabilitated or that rehabilitation will not produce the quality Soldier acceptable in the baseline force.

23.  Army Regulation 635-200 provides in:

	a.  Paragraph 3-7a, 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, 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.  

24.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends that applicant's discharge should be upgraded because he did not receive the proper counseling and rehabilitative measures prior to his discharge.  

2.  The evidence of records show the applicant received NJP on several occasions for several acts of misconduct that could have resulted in a bad conduct or dishonorable discharge.  The purpose of NJP is to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures.  In addition, the applicant provided a statement in which he stated that he believed the Army had attempted to help him every way and that his units' commanders and counselors had also tried to help him.  

3.  Further, as part of his request for discharge under the provisions of Army Regulation 635-200, chapter 10 and his discharge processing under chapter 13, he consulted with legal counsel and he was advised of the effects of an under other than honorable conditions discharge.  Therefore, the counsel's contention that the applicant did not receive the proper counseling prior to his discharge appears to be without merit.  

4.  The evidence confirms the applicant was reassigned a number of times and he was afforded every opportunity to correct his behavior; however, his misconduct continued even while serving under different commanders resulting in disciplinary actions.  Therefore, the counsel's contention that the applicant was not afforded a rehabilitative reassignment also appears to be without merit.

5.  The evidence of record confirms the applicant's separation processing for unfitness was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

6.  The applicant's record of indiscipline includes NJP on multiple occasions for several acts of misconduct, a court-martial conviction for being AWOL, and 
62 days of lost time.  Based on this record of indiscipline, his overall record of service did not support the issuance of an honorable or a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

7.  The applicant's counsel has failed to show that the applicant's separation processing and/or the character of service he received were in error or unjust.  As a result, there is no basis for granting an upgraded of the applicant's 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)                                         AR20140013265



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013265



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1