BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140016284 


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 his general discharge be upgraded to honorable.

2.  The applicant states, in effect:

	a.  He was issued a general discharge because he fell asleep on the job.  His commander pushed the issue and gave him a choice of agreeing to this type of discharge or he could go to a court-martial.  He did not fully understand the consequences of a court-martial or the type of discharge he received.  He was having marital issues and his wife left him.  Instead of paying to have his quarters cleaned professionally, he chose to save money and do it himself.  However, he was tired after he stayed up late cleaning and he fell asleep at work and his commander found him asleep.  

	b.  His previous service was honorable and he has been a model citizen since being discharged.  He was caught sleeping and that was the worst thing he did during his military career.  His discharge will affects him the rest of his life and it does not fit the offense of falling asleep on duty.

3.  The applicant provides two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter.





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 (RA) on 14 March 1969 and he held military occupational specialty (MOS) 76Y (Unit Supply Specialist/Armorer). On 2 January 1970, he was assigned to the 3rd Brigade, 9th Infantry Division, Vietnam.  

3.  On 10 September 1970, he was assigned to Headquarters and Headquarters Company (HHC), 3rd Brigade, 101st Airborne Division, Vietnam.  On 13 September 1970, he was honorably discharged for the purpose of immediate reenlistment.  

4.  On 14 September 1970, he reenlisted in the RA.  On 24 November 1970, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for one specification each of:

* possessing an unauthorized privately owned weapon 
* discharging, through carelessness, an unauthorized firearm in the Operations Building of HHC, 3rd Brigade, 101st Airborne Division, Vietnam

5.  On 28 November 1970, he departed Vietnam and was subsequently assigned to Fort Dix, NJ.  On 12 May 1971, he was assigned to Headquarters Company, Basic Combat Training Command Group, Fort Dix.  On 18 July 1972, he was assigned to the 555th Military Police (MP) Company, Fort Dix.  On 20 October 1972, he was assigned to the 532nd MP Company, Fort Dix.  

6.  Between 4 November 1972 and 7 August 1973, he was frequently counseled by his first sergeant and company commander for numerous acts of misconduct, inappropriate behavior, failure to pay his just debts, and domestic abuse.   

7.  On 15 June 1973, he received NJP under the provisions of Article 15, UCMJ, for two specifications of failing to be at his appointed place of duty at the time prescribed.  

8.  On 6 September 1973, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unfitness.

9.  On 6 September 1973, he acknowledged notification of the proposed discharge action.  On 7 September 1973, he consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to him.  He further acknowledged he understood if he were issued an undesirable discharge he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He requested consideration of his case by a board of officers. 

10.  On 7 September 1973, his immediate commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness.  The commander stated his conduct and behavior on and off duty during the previous 18 months clearly demonstrated that he was unwilling to perform his military service in a satisfactory manner as evidenced: 

* On 21 March 1972, he was apprehended and charged with assault by the MPs for striking a young boy, not his son, with his hand
* On 2 and 14 November 1972, the MPs responded to disturbances and found two runaway females at his quarters; his spouse subsequently accused him of making advances toward the 15-year-old runaway
* On 16 February 1973, he was apprehended by the MPs and charged with neglect for leaving his 6-year-old daughter unattended at his quarters; she was found wandering outside in extremely cold weather
* On 27 March 1973, he was admonished for writing dishonored checks at the Post Exchange (PX)
* On 15 June 1973, he received an Article 15 for two specifications of failing to report
* On 9 July 1973, MPs apprehended him at the Fort Dix commercial bus station for disorderly conduct while under the influence of alcohol



* On 7 August 1973, he was arrested by civilian police for failing to appear in court on three motor vehicle violations
* His 7 August 1973 arrest resulted in his family being left alone without money, food, or transportation; military and county welfare agencies had to assume the support of his family until his release on 13 August 1973
* On 6 September 1973, disciplinary action was initiated against him for dereliction of duty when he was found asleep on duty
* His unit received numerous complaints from local merchants for his failure to pay just debts 

11.  On 23 October 1973, a board of officers convened to consider his case.  After hearing testimony from the applicant, his counsel, his chain of command, other witnesses, and reviewing all the evidence presented, the board found the applicant was undesirable for further retention because of frequent incidents of a discreditable nature with military and civil authorities and recommended he be discharged with the issuance of a General Discharge Certificate.  

12.  On 30 October 1973, the convening authority approved the findings and recommendations of the board and directed the issuance of a General Discharge Certificate.  

13.  On 2 November 1973, he was discharged accordingly.  The DD Form 214 he was issued for this period of service shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness with a general characterization of service.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  The applicant provides a letter, dated 28 August 2014, from the Department of Veterans Affairs Regional Office, St. Petersburg, FL, wherein it stated they were giving him the certificate so he could receive commissary and PX privileges and that he was an honorably discharged veteran and had service-connected disabilities evaluated at 100 percent.

16.  Army Regulation 635-200, then in effect, set forth the policy and prescribed the procedures for administrative separation of enlisted personnel.  Paragraph 13-5(a) provided for separation for unfitness, which included frequent incidents of a discreditable nature, drug abuse, shirking, failure to pay just debits, and failure to support dependents.  An undesirable discharge was normally issued.


17.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJPs he received on two occasions and the numerous acts of misconduct involving both civilian and military authorities.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation 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 appropriate considering all the facts of the case.

3.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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)                                         AR20140016284



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ABCMR Record of Proceedings (cont)                                         AR20140016284



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