IN THE CASE OF:  	

		BOARD DATE:  7 July 2015    	  

		DOCKET NUMBER:  AR20140015161


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 undesirable discharge.

2.  The applicant states:

	a.  His record is in error because Captain (CPT) Txxxxx promised him that he would be released with an honorable discharge, after he suffered from a severe case of food poisoning at Fort Jackson, South Carolina.  CPT Txxxxx presented him with paperwork to sign; however, the paperwork was not fully explained to him.  In serving his country faithfully, he should have received what he was promised.

	b.  After attempting in the past to correct this injustice, the Board should right a wrong that was committed against him 40 years ago.  He signed up to serve his country, and his government failed him by allowing him to be released under other than honorable conditions.

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.  The applicant enlisted in the Regular Army on 28 February 1973.  He completed his initial entry training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  His record shows he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following three occasions:

* on 15 June 1973, while a trainee in advanced individual training (AIT), for stealing the property of another Soldier, on or about 3 June 1973
* on 10 January 1974, for absenting himself from his unit from on or about  7 January 1974 through on or about 9 January 1974
* on 3 September 1974, for wrongfully selling a controlled substance (marijuana), on or about 29 June 1974, and for absenting himself from his unit from on or about  12 August 1974 through on or about 20 August 1974

4.  Special Court-Martial Order Number 28, issued by Headquarters, 1st Basic Combat Training Brigade, Fort Jackson, South Carolina on 25 November 1974, show he was charged as follows:

* a single specification of Charge I, for violating Article 86 of the UCMJ; specifically, for failing to go at the prescribed time, to his appointed place of duty, on or about 12 October 1974
* a single specification of Charge II, for violating Article 90 of the UCMJ; specifically, for willfully disobeying the lawful order of a superior commissioned officer, on or about 14 October 1974
* a single specification of Charge III, for violating Article 107 of the UCMJ; specifically, for making a false official statement, on or about 10 October 1974
* two specifications of Charge IV, for violating Article 134 of the UCMJ; specifically, for breaking restriction and for wrongfully appearing off-post in an improper uniform, each on or about 10 October 1974 

He was convicted of Charges II (of a violation of Article 86, not Article 90), III, and specification I of Charge IV.  He was found not guilty of charge I and specification II of Charge IV.  His sentence was adjudged on 8 November 1974. 

5.  He underwent a mental status evaluation on 18 November 1974.

	a.  He was evaluated for unfitness and was found to be of normal behavior, fully alert and oriented, with a level mood, a clear though process, normal thought content, and good memory.  

	b.  The examiner found no significant mental illness; the applicant was determined to be mentally responsible, able to distinguish right from wrong and adhere to the right, with the mental capacity to understand and participate in [separation] board proceedings.  

	c.  He was determined to meet the retention standards found in Chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).

6.  The applicant's immediate commander notified the applicant on 19 November 1974 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unfitness.  His commander cited his apathy, defective attitudes, and his inability to expend effort constructively as reasons for his separation recommendation.

7.  The applicant acknowledged his receipt of the proposed separation memorandum on 19 November 1974.  

* he acknowledged that he had been notified of the pending separation action against him
* he was advised by counsel of the basis for the contemplated action to separate him for unfitness
* he waived representation by counsel and personal appearance before, and consideration of his case by, a board of officers
* he elected to submit a statement in his own behalf, wherein he attempted to articulate his feelings regarding the unfairness of a "bad" discharge, given that he had completed over half of his contracted time, and his wife was pregnant at home and he hadn't seen her in 5 or 6 months

8.  In conjunction with his counseling, he acknowledged he understood that, as the result of the issuance of an undesirable discharge under conditions other than honorable, he could be considered ineligible for many or all benefits as a veteran under both Federal and State laws, and he may expect to encounter substantial prejudice in his civilian life.

9.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him on 19 November 1974, under the provisions of paragraph 13-5a (1) of Army Regulation 635-200, by reason of unfitness.  The immediate commander requested a waiver of any further requirements for counseling or rehabilitative transfer because prior attempts had failed.  Specifically, his commander cited his frequent incidents of a discreditable nature with military authorities, and drug abuse.

10.  The applicant's battalion and brigade commanders recommended approval of his separation action, and a waiver of any rehabilitation efforts, on                 22 November and 29 November 1974, respectively.

11.  The separation authority approved his discharge on 10 December 1974, under the provisions of Army Regulation 635-200, chapter 13, due to unfitness, and ordered the issuance of an Undesirable Discharge Certificate.  

12.  The applicant was discharged accordingly on 12 December 1974, after completing 1 year, 9 months, and 4 days total active military service.  The        DD Form 214 he was issued shows: 

* he was discharged under the provisions of Army Regulation 635-200, chapter 13, and assigned Separation Program Designator (SPD) "JLB" (Unfitness – frequent involvement of a discreditable nature with authorities)
* he received an under other than honorable conditions characterization of service
* he was issued an Undesirable Discharge Certificate

13.  His record is void of any documentation that suggests he was promised an honorable discharge at any time during his separation processing.

14.  The Army Discharge Review Board (ADRB) considered his request for a discharge upgrade on 23 August 1976; however, it denied his request by directive dated 10 September 1976.  

15.  The ABCMR denied his request for a discharge upgrade on 25 May 1977.  

16.  The ADRB re-examined his request for a discharge upgrade on 21 August 1979; again, it denied his request for relief. 

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided 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 an honorable or a general discharge.

	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 an under honorable conditions (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 a discharge upgrade was carefully considered.

2.  He contends he was not properly counseled at the time regarding the character of his service, and the Board should right a wrong that was committed against him 40 years ago, because he signed up to serve his country and his government failed him by allowing him to be released under other than honorable conditions.  
 
3.  His record reveals a history of misconduct that includes three instances of NJP and a court-martial conviction on multiple specifications and charges.  As a result of his misconduct, his commander initiated his separation from the Army.

4.  His separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  

* the separation proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service
* the reason for his separation and the proposed characterization of service were both proper and equitable
* his separation acknowledgement shows he benefitted from the advice of legal counsel
* his separation acknowledgement shows he understood the severity of the characterization of service associated with his proposed discharge

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service and the facts surrounding his separation did not support the issuance of an honorable or general discharge by the separation authority at the time, and they do not support an upgrade of his discharge now.  Therefore, he is not entitled to 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)                                         AR20110023618



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ABCMR Record of Proceedings (cont)                                         AR20140015161



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