BOARD DATE:	  7 May 2015

		DOCKET NUMBER:  AR20140015676


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 makes no statement in support of his request.

3.  The applicant 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's record shows he enlisted in the Regular Army for a 3-year term on 6 March 1967.  He completed training and was awarded military occupational specialty (MOS) 02J2P (Clarinet Player).  He was honorably discharged for the purpose of immediate reenlistment on 21 December 1967.   
3.  He reenlisted in the Regular Army for a 6-year term on 22 December 1967.  He was then reclassified into MOS 68F (Aircraft Electrician).  

4.  He served in the Republic of Vietnam from 20 July 1968 to 18 July 1969.  He reported to Hunter Army Airfield, GA, for assignment to the 4th Aircraft Maintenance Battalion on or about 21 August 1969.       

5.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on          23 April 1970 for the following three specifications:  

* for failing to obey by reporting to his unit at Hunter Army Airfield on           6 March 1970
* for being absent without leave (AWOL) from on or about 7 March 1970 until on or about 11 March 1970
* for knowingly violating a lawful order issued by the Commanding General by failing to be present for bed check on 14 April 1970

6.  On 4 May 1970, his company commander recommended that he be barred from reenlistment for substandard performance and undesirable conduct.  The commander cited his period of AWOL and his prior acts of knowingly writing bad checks.  His commander also stated that numerous counseling efforts had failed to improve his performance and undesirable conduct.  The applicant acknowledged the action and elected not to make a statement regarding the bar. This action was approved on 7 May 1970 by his higher commander. 

7.  On 10 June 1970, he was arrested by civil authorities in Savannah, GA for writing worthless checks.  It is unclear how long he was incarcerated; however, item 30 (Remarks) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows lost time from 10 June 1970 through    30 October 1970 (143 days).  

8.  On 23 July 1970, his commander notified him he was recommending his discharge in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), based on conviction by civil court for offenses for which the maximum penalty under the UCMJ was confinement in excess of         1 year.  His commander also advised him of his right to a hearing before a board of officers, of the applicable waiver provisions, and of his right to submit written statements in his own behalf.  He was informed of his right to counsel and that military counsel would be made available to him or that he could employ civilian counsel at no expense to the U.S. Government, if so desired.

9.  On 28 July 1970, he acknowledged receipt of the notification of separation action.  On 31 July 1970, he again acknowledged the basis of the separation action and:

* he waived consideration of his case by a board of officers
* he elected not to submit a written statement in his own behalf
* he waived appointment of military counsel to represent him 
* he understood that, as a result of the issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and state laws, and that he may expect to encounter substantial prejudice in civilian life
* he did not intend to appeal his conviction 

10.  On 31 July 1970, he was given a psychiatric review in which the psychiatrist noted the following:

* he was held in civilian confinement after being arrested for passing bad checks and being unable to pay his hotel bill
* he and his wife ran up expenses more than he could afford and began to write bad checks
* he served in the Republic of Vietnam and denied any difficulty with the Army until the present time
* his affect and speech were appropriate and there was no depression
* he possessed the capacity to determine right from wrong and adhere to the right
* he was competent to take part in board processings
* his diagnosis was character disorder
* the recommendation was no psychotherapy would be beneficial in dealing with his character disorder

11.  On 4 August 1970, he was given a medical evaluation and was determined to be medically fit for retention and he was not suffering from incapacitating physical or mental illnesses.  

12.  On 10 August 1970, he was reduced to the grade of private/E-1, for misconduct (Conviction in Civil Court on 17 July 1970 for writing worthless checks and theft of services).  

13.  On 26 October 1970, his commander recommended he be eliminated from military service under the provisions of Army Regulation 635-206, paragraph 33a, for conviction by civil court with the issuance of an undesirable discharge certificate.   The commander cited the following reasons:

     a.  He was convicted in the State Court of Chatham County on 17 July 1970, on six charges of uttering worthless checks and one charge of theft of services.  He was sentenced individually on each charge and sentences were to run consecutively.  The total sentence was 13 months confinement in the Public Work Camp of Chatham County or pays a fine of $275.  He was unable to secure the funds to pay the fine and was currently confined in the Chatham County Public Work Camp.  

     b.  He was not recommended for elimination prior to this date for the following reasons:

          (1)  He was apprehended by civil police on 10 June 1970, for an outstanding arrest warrant for worthless checks.

          (2)  A Criminal Investigation Command (CID) investigation was ongoing for altering a pay voucher.

          (3)  On 23 July 1970, action to eliminate was held in abeyance for pay voucher tampering. 

          (4)  On 21 October 1970, a CID agent informed him the Judge Advocate General had recommended elimination in lieu of prosecution, due to the small sum of money involved in the fraud and the lack of sound evidence to prove altering a public document.   

     c.  All attempts at rehabilitative efforts had failed. 

14.  On 26 October 1970, the Commander, U.S. Army Flight Training Center and Fort Stewart, GA, approved the discharge under the provisions of Army Regulation 635-206.  He was to be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.    

15.  On 30 October 1970, he was discharged under the provisions of Army Regulation 635-206, paragraph 33a, by reason of conviction by civil court with a character of service as under other than honorable conditions.  His DD Form 214 shows he completed 3 years, 3 months, and 1 day of total active service.  Item 30 (Remarks) shows he had 147 days of lost time.  The highest rank/pay grade he attained while serving on active duty was specialist five/E-5.  

16.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  It provided that an undesirable discharge was normally considered appropriate for members separated under this regulation.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), the current regulation governing enlisted separations, 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.  The applicant makes no contention other than wanting an upgrade of his under than other honorable conditions discharge.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of Army personnel as evidenced by his record of indiscipline including NJP and a conviction in a civil court.  Accordingly, his chain of command recommended his elimination from the Army.  

3.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.

4.  His record reveals an extensive disciplinary history that included his punishment by NJP and his incarceration by the State of Georgia.  Given this record of misconduct and the civil conviction that ultimately led to his discharge, his overall record of service did not support the issuance of an honorable or a general under honorable conditions discharge by the separation authority at the time of his discharge and does not support an upgrade at this time.

5.  In view of all of the foregoing, there is no basis for granting 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20140015676



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