IN THE CASE OF:	  

		BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140014541


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

	a.  There were false statements contained in his discharge paperwork and there was calibrated evidence that was used against him at the time of his discharge.  Since the country was at war in Vietnam, he didn't get due justice or a chance to explain himself.  He was discharged and sent home immediately.  

	b.  He has been trying to get this error corrected for years; he has exhausted all administrative avenues available.  His discharge is in error because it was not properly examined before it was given to him, and it shouldn't have been given to him.  He needs a review board, not the denial of a discharge upgrade.  He dedicated himself to serving his country at the time of his service and he feels he was set up and put out of the Army due to someone else's feelings.  

3.  The applicant provides no additional evidence in support of his request.

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.  On 8 July 1970, the applicant was inducted into the Army of the United States. He completed his initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  He served in the Republic of Vietnam from 10 March 1971 to 24 September 1971.

4.  He accepted nonjudicial punishment (NJP) on 15 May 1971, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty at the prescribed time, on or about 26 April 1971, and for missing movement on or about 2 May 1971.

5.  His record contains 3 separate DA Forms 2823 (Witness Statement), dated 25 August 1971, which were prepared by unit noncommissioned officers (NCO) from Company D, 1st Battalion, 52nd Infantry Regiment, including the unit first sergeant (1SG).  Each statement portrayed the applicant negatively; he did not respond to counseling, disrespected authority, was a notorious shirker, and fostered racial disharmony.  

6.  His immediate commander notified him of his intent to initiate separation action against him, in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), for unfitness with an undesirable discharge.  This action was based on his continuous misconduct, habitual shirking, and flagrant disrespect for authority, making him unable to conform to the standards or perform the duties required of a Soldier.

7.  He acknowledged receipt of the separation action and consulted with legal counsel on 26 August 1971.  He was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a less than honorable discharge was issued to him, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He elected to waive consideration of his case by, and personal appearance before, a board of officers.  He waived further representation by his appointed counsel and elected not to submit statements in his own behalf.

8.  His commander initiated separation action against him under the provisions of Army Regulation 635-212, by reason of unfitness, on 25 August 1971, citing his continuous misconduct, habitual shirking, and complete disregard for authority.  His attitude toward the Army was extremely poor, and his chronic belligerence was beginning to affect the overall efficiency of the unit.  

9.  His battalion and brigade commanders recommended approval of his discharge on 3 September and 5 September 1971, respectively, and recommended he receive an undesirable discharge.  

10.  The approval authority approved his discharge under the provisions of Army Regulation 635-212 on 15 September 1971 and directed he receive an Undesirable Discharge Certificate.

11.  The applicant was discharged from the Army under the provisions of Army Regulation 635-212 on 24 September 1971.  The DD Form 214 he was issued confirms:

* he was discharged in the rank/grade of private/E-1
* he was assigned Separation Program Number 386 (Established Pattern of Shirking) 
* he received an under other than honorable conditions character of service
* he was issued a DD Form 258A (Undesirable Discharge Certificate)

12.  His discharge was review under the Department of Defense (DOD) Special Discharge Review Program; however, on 16 August 1977, the Army Discharge Review Board (ADRB) informed the applicant that, after careful review, the ADRB determined he was properly discharged and denied his petition for a discharge upgrade.

13.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness and unsuitability.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; 
c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

14.  Army Regulation 635-200 (Enlisted Personnel Separations), now in effect, sets forth the basic authority for the separation of enlisted personnel.  

   a. 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.  

   b. 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 request for an upgrade of his under other than honorable conditions discharge was carefully considered.

2.  He contends there were false statements contained in his discharge paperwork and there was calibrated evidence that was used against him at the time of his discharge.  However, he offers no specific examples of false statements or his meaning behind the term "calibrated evidence."  Consequently, there is no way for the Board to verify or validate his contention.

3.  The evidence of record shows he was recommended for separation based on his continuous misconduct, habitual shirking, and complete disregard for authority.  His attitude toward the Army was extremely poor, and his chronic belligerence was beginning to affect the overall efficiency of the unit.  He offers no evidence that shows his commander's assessment of his performance and potential was in error, untrue, or unfair.

4.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory; therefore, he is entitled to neither a general nor an honorable 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)                                         AR20140014541



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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