IN THE CASE OF:	   

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140013792 


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 reconsideration of his request for an upgrade of his undesirable discharge to a fully honorable discharge.

2.  The applicant states, in effect, that he was wrongfully accused of striking an officer.  He was detained by the military police for 12 hours pending an investigation.  He was found not guilty of striking and kicking the officer.  He was released at noon on 27 October 1974 and he went to his unit to report for normal duties, that included signing in every hour on the hour.  He also states he twice received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).  The first NJP was for allowing another Soldier into the arms room to deliver a comic book.  The second NJP was connected to his buffing the floor in the barracks.

3.  The applicant provides three third party statements.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130002218, on 29 August 2013.

2.  The applicant enlisted in the Regular Army on 9 November 1973 for a period of 3 years and assignment to Fort Ord, California.  He completed his basic training at Fort Jackson, South Carolina and his advanced individual training as an infantryman at Fort Polk, Louisiana before being transferred to Fort Ord on 20 March 1974 for his first and only assignment. 

3.  During the period of 2 May 1974 to 27 August 1975, nonjudicial punishment was imposed against the applicant on seven different occasions for offenses of: 

* failing to obey a lawful order
* failure to go to his place of duty
* disobeying a lawful command
* being disrespectful in manner and language and communicating a threat to a noncommissioned officer
* absence from his place of duty 

4.  On 5 November 1974, he was convicted by a summary court-martial of disobeying a lawful order from a commissioned officer.  He was sentenced to a reduction to the pay grade of E-1 and a forfeiture of $180.00. 

5.  On 26 September 1975, the commander notified the applicant that he was being considered for elimination under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unfitness.

6.  On 30 September 1975, after consulting with defense counsel, the applicant elected to appear before a board of officers and to be represented by military counsel.  He also elected not to make a statement in his own behalf.  

7.  On 21 November 1975, the applicant appeared before a board of officers and was represented by counsel.  After reviewing the evidence and testimony, the board recommended the applicant be separated and issued an Undesirable Discharge Certificate due to unfitness.

8.  On 14 December 1975, the appropriate authority (a brigadier general) approved the recommendation and directed the applicant be issued an Undesirable Discharge Certificate.

9.  Accordingly, he was discharged on 2 January 1976 under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness - frequent involvement of a discreditable nature with authorities, and furnished an Undesirable Discharge Certificate.  He completed 2 years, 1 month, and 24 days of total active service.

10.  There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  The third-party statements provided by the applicant with his application attest to his character and integrity and assert that he is well respected, very dependable, and is a very positive influence in his church and community. 

12.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  It states:

	a.  Chapter 13, in effect at the time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, that 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

2.  The applicant’s contention that his discharge should be upgraded to fully honorable based on his post-service conduct has been noted and appears to lack merit.  

3.  The applicant’s extensive record of misconduct and disciplinary actions clearly does not meet the standards of acceptable conduct for Army personnel and  rendered his service unsatisfactory. 

4.  While the applicant is to be commended for his post-service conduct, good post-service alone does not sufficiently mitigate his repeated acts of indiscipline during his military service.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 to amend the decision of the ABCMR set forth in Docket Number AR20130002218, dated 29 August 2013.




      _______ _   ___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)                                         AR20140013792





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ABCMR Record of Proceedings (cont)                                         AR20140013792



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