IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140014202 


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, that his previously-upgraded discharge be affirmed under the Department of Defense (DOD) Special Discharge Review Program (SDRP).

2.  The applicant states the Army did not honor its guarantee as written and signed by the Presiding Officer – Colonel (COL) Hxxxx W. Txxxxxxx.  He hopes that no other human in the U.S. military has to endure the emotional and psychological strain to which he has suffered over the years.  In this case, finally, do the right thing.

3.  The applicant provides copies of the following:

* Veterans  Administration (VA) Form 21-6796 (Rating Decision)
* two Recommendation for Discharge Because of Unfitness memoranda
* DD Form 214 (Report of Separation from Active Duty) ending on 28 March 1969
* DD Form 215 (Correction to DD Form 214)
* letter from Colonel (COL) Hxxxx W. Txxxxxxx

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army (RA), in pay grade E-1, on 28 May 1965, for 3 years.  He was awarded military occupational specialty 11B (light weapons infantryman).  He served in Germany from 16 November 1965 through 7 October 1966.

3.  He was honorably discharged on 27 May 1966 for the purpose of immediate reenlistment.  He reenlisted in the RA in pay grade E-3 on 28 May 1966, for 4 years.  

4.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on/for:

* 26 November 1966 - failing to go to his appointed place of duty after being ordered to do so on 25 November 1966
* 16 January 1967 - failing to go to his appointed place of duty; his punishment included a reduction to pay grade E-2
* 6 March 1967 - being found improperly dressed and not performing his duties as barracks orderly on 3 and 6 March 1967; his punishment included a reduction to pay grade E-1
* 9 March 1967 - willfully disobeying lawful orders from his two superior noncommissioned officers (NCO) and failing to go to his appointed place of duty on 7 March 1967
* 1 June 1967 - failing to turn in his vehicle on 29 May 1967 and failing to go to his appointed place of duty on 31 May 1967
* 18 August 1967 - failing to go to his appointed place of duty on 12 August 1967

5.  On 29 January 1968, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 14 November through 5 December 1967.  He was sentenced to a forfeiture of $90.00 pay for 3 months and 3 months of confinement at hard labor. 



6.  On 6 February 1968, the convening authority approved only so much of the sentence as provided for a forfeiture of $40.00 pay for 3 months and suspended the sentence of 3 months of confinement at hard labor and ordered the sentence executed.

7.  On 12 April 1968, the convening authority vacated the suspended sentence of 3 months of confinement at hard labor and ordered it executed.

8.  On 22 April 1968, he was convicted by a special court-martial of one specification each of willfully disobeying a lawful order from his superior NCO on 23 March 1968 and behaving himself with disrespect towards his superior officer on 6 April 1968.  He was sentenced to a forfeiture of $90.00 pay for 6 months and 6 months of confinement at hard labor. 

9.  He provided a copy of a VA Form 21-6796, dated 16 April 1968, which shows he was awarded service-connection for his back condition.

10.  On 24 April 1968, the convening authority approved only so much of the 22 April 1968 sentence as provided for a forfeiture of $60.00 pay for 6 months and 6 months of confinement at hard labor and ordered the sentence executed.

11.  On 20 June 1968, he accepted NJP under Article 15, UCMJ, for being AWOL from 11 to 18 June 1968.  His punishment included a forfeiture of $24.00 pay for 1 month.

12.  On 6 February 1969, he was convicted by a special court-martial of one specification each of being AWOL from 12 October through 5 November 1968 and from 10 November through 30 December 1968.  He was sentenced to a forfeiture of $70.00 pay for 6 months and 6 months of confinement at hard labor. 

13.  On 17 February 1969, the convening authority approved and ordered the sentence executed.

14.  On 19 February 1969, after consulting with counsel, the applicant acknowledged receipt of the proposed separation under the provisions of Army Regulation 635-212 (Unfitness).  He also acknowledged he could receive an under conditions other than honorable and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf. 



15.  A Certificate shows the applicant underwent a neuropsychiatric examination on 27 February 1969.  He was diagnosed with a passive aggressive personality.  The examining psychiatrist found no disqualifying mental defects sufficient to warrant disposition through medical channels.  He found the applicant was mentally responsible, able to distinguished right from wrong, and to adhere to the righs.  Based on the applicant's current attitude and his current motivation, it was most unlikely that any further rehabilitation or therapeutic efforts would affect any significant improvements in his level of function or in the applicant's attitude.  He stated the applicant could not be rehabilitated to the extent that he could be an effective Soldier and he was recommending administrative separation under the provisions of Army Regulation 635-212 (Unfitness).  

16.  On 5 March 1969, the applicant's battalion recommended approval of the applicant's discharge.  He stated the applicant had received 4 Article 15s and the numerous attempts had been made to rehabilitate the applicant had met with failure.  The applicant had a rather poor record for the past year he had been in the military.  He had received 3 special court-martial, 2 for being AWOL and one was for various counts of assault, disrespect, and failure to obey a lawful order.  He also stated the applicant was very positive in stating that he would go AWOL if returned to duty.  He felt the applicant should be discharged as expeditiously as possible.   

17.  On 13 March 1969, the separation authority approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate.

18.  Accordingly, he was discharged in pay grade E-1 on 28 March 1969.  His service was characterized as under conditions other than honorable.  He was credited with completing 2 years and 7 months of active service and 202 days of time lost.

19.  On 16 September 1976, the Army Discharge Review Board (ADRB) denied his petition for an upgrade of his discharge.

20.  On 29 July 1977, the ADRB notified him of the approved upgrade of his discharge under the DOD SDRP effective 6 June 1977.  Accordingly, his original DD Form 214 was voided and he was reissued a DD Form 214 that shows he received an under honorable conditions (general) discharge, effective 6 June 1977.  

21.  In May 1978, the ADRB re-reviewed his discharge as required by Public Law 95-1026 and determined that he did not qualify for a discharge upgrade.  He was notified accordingly.

22.  On 24 August 1978, a DD Form 215 was issued that shows his characterization of service was warranted under the provisions of the DOD SDRP on 4 April 1977.

23.  He also provided a copy of a letter, dated 22 November 19XX [unsure what year the letter was prepared], wherein COL Txxxxxxx, in effect, requested a new hearing for the applicant before the ADRB due to administrative problems that occurred with previous scheduling in 1976.   

24.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability.  The regulation stated in:

   a.  Paragraph 6a - an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

25.  On 4 April 1977, DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  In the absence of compelling reasons to the contrary, this program, known as the DOD SDRP, required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual.

26.  In October 1978, Public Law 95-126 was enacted.  This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their SDRP review.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the Army did not honor its guarantee.

2.  The evidence of records shows during his period of service between May 1966 and March 1969, he had a disciplinary record that included numerous instances of NJP and 3 instances of court-martial, 2 for being AWOL and one was for various counts of assault, disrespect, and failure to obey a lawful order.  He clearly exhibited a total disregard for military authority and a complete lack of discipline and military bearing. 

3.  The ADRB upgraded his undesirable discharge to a general discharge under the DOD SDRP on 6 June 1977 based on a mandate contained in the established DOD SDRP criteria in effect at the time.  

4.  However, in May 1978, ADRB re-reviewed his discharge using uniform discharge review standards, as required by Public Law 95-126, and determined that he did not qualify for upgrading under the new uniform standards for discharge review.  Therefore, his upgraded discharge under the DOD SDRP was not affirmed by the ADRB.

5.  The reason for his undesirable discharge and the characterization of service were both proper and equitable.  Further, the quality of his service between May 1966 and March 1969 did not meet the standards of acceptable conduct and performance expected of Army personnel. 

6.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process, and that the undesirable discharge he received accurately reflected his overall record of service at the time it was issued.  

7.  In view of the foregoing, there is no basis to support granting him the requested relief.

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)                                         AR20140014202





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ABCMR Record of Proceedings (cont)                                         AR20140014202



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