IN THE CASE OF:  

		BOARD DATE:  2 July 2015	  

		DOCKET NUMBER:  AR20140017102 


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 the following:

* an upgrade of his general discharge to an honorable discharge
* award of the Army Good Conduct Medal 
* correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show all awards he is entitled to for his overseas service

2.  The applicant states that sometime after his discharge he met and spoke with a Member of Congress and was told his discharge could be upgraded.  He now says he never received an Honorable Discharge Certificate as promised by his Member of Congress.

3.  The applicant provides a copy of his DD Form 214.

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 in pay grade E-1 on 4 November 1968 for 2 years.  He was awarded military occupational specialty (MOS) 55B (ammunition storage specialist).  He served in Korea from 3 July 1969 through 1 September 1970.  He was advanced to pay grade E-3 on an unknown date.

3.  On 7 February 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violating a general regulation. 

4.  On 13 February 1970, the applicant's company commander counseled the applicant on his unsatisfactory duty performance and possible transfer to another platoon which was also within his MOS.  He advised the applicant that he had a choice between reporting to work at his new platoon or being court-martialed for disobeying a direct order. The applicant later stated that he had arranged with the mess sergeant to work in the mess hall.  The mess sergeant stated that the applicant wasn't performing his duties in the mess hall so the applicant's company commander again reassigned him to another platoon.  

5.  On 16 February 1970, he accepted NJP for missing bed check.

6.  On 2 March 1970, the applicant's company commander counseled him after the applicant stated he would not work in the new platoon.  The commander informed the applicant to report to work or summary court-martial proceedings would be initiated for refusing a direct order from a commissioned officer.

7.  On 10 March 1970, he accepted NJP for disobeying a lawful order from his commanding officer for failing to go to his appointed place of duty and being incapacitated for duty on 3 March 1970.  His punishment included a reduction to pay grade E-2 and a forfeiture of $50.00 per month for one month.

8.  A Report of Psychiatric Evaluation, dated 12 March 1970, shows the applicant had a history of failing to comply with rules, regulations, and authority.  He had two civilian convictions and three NJPs since entering the service.  He demonstrated no rehabilitative attitudes as he refused to work.  There was no evidence of any psychiatric disease.  The applicant was cleared psychiatrically for any action deemed advisable by his command.


9.  In April 1970, the applicant's unit commander recommended the applicant appear before a board of officers to determine if the applicant should be discharged for unsuitability under the provisions of Army Regulation 635-212 (Discharge – Unfitness and Unsuitability), section 1, paragraph 6b(2).

10.  A DA Form 2496 (Disposition Form), dated 4 April 1970, shows the Chief, Personnel Actions Branch, returned the company's action to discharge the applicant for unsuitability under Army Regulation 635-212, paragraph 6b(2), because the cited authority had not been determined by proper medical authority. The condition of emotional instability had not been indicated by the psychiatrist upon his examination.  The psychiatrist indicated no evidence of psychiatric disease was found during the examination of the applicant.  The unit commander specified paragraph 6b (2) of Army Regulation 635-212 as the basis for separation although medical authority had not determined this to be the basis for separation.  The Personnel Actions Branch official requested future actions for elimination should be prepared in accordance with Army Regulation 635-212, paragraphs 12a and 12b.  

11.  On 12 April 1970, the applicant's unit commander returned the request for the applicant's elimination with the deficiencies corrected.  The unit commander stated that he saw nothing wrong with advising the applicant of his rights 8 days before the psychiatric report was dated.  Character and behavior disorders were plainly evident at that time.

12.  On 23 April 1970, the applicant was convicted by a summary court-martial for one specification of willfully disobeying a lawful order from his superior commissioned officer.  He was sentenced to 30 days of hard labor and a forfeiture of $75.00 per month for one month.  The sentence was approved and ordered executed on 24 April 1970.

13.  On 24 April 1970, the applicant's company commander notified the applicant of his initiation of action to eliminate him under the provisions of Army Regulation 635-212, for unsuitability.  He again advised the applicant of his rights.

14.  On 27 April 1970, after consulting with counsel, the applicant acknowledged receipt of the proposed elimination action.  He also acknowledged he could receive a general discharge or an undesirable discharge and the result of the issuance of such discharges.  He elected to have his case considered by a board of officers.

15.  On 4 June 1970, he accepted NJP for possessing drug paraphernalia.  
16.  On 19 June 1970, the applicant and counsel appeared before a board of officers.  After careful consideration of the evidence, the board found the applicant was unsuitable for further retention in military service because of his habits and traits of character manifested by repeated commission of offenses which were prejudicial to the good order and discipline within the U.S. Army.  The board recommended the applicant be discharged and issued a General Discharge Certificate.

17.  On 30 June 1970 the separation authority approved the findings and recommendations of the board of officers.

18.  On 2 July 1970 after consulting with counsel, the applicant acknowledged receipt of his discharge under Army Regulation 635-212 for unsuitability.

19.  On 6 July 1970 the separation authority approved his discharge and directed the issuance of a General Discharge Certificate.

20.  He was discharged accordingly in pay grade E-2 on 10 July 1970.  He was credited with completing 1 year, 8 months, and 7 days of active service.  His service was characterized as under honorable conditions and he was issued a General Discharge Certificate.  His DD Form 214 lists in:

* Item 11c (Reason and Authority) – Army Regulation 635-212, SPN [Separation Program Number] 264, which separation for a character and behavior disorder
* Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – None

21.  His DA Form 20 (Enlisted Qualification Record) shows in:

* Item 38 (Record of Assignments) he received "good," "unsatisfactory," and "satisfactory" conduct and efficiency ratings throughout his period of service
* Item 41 (Awards and Decorations) lists the:

* National Defense Service Medal
* Armed Forces Expeditionary Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

* Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date of Expiration Term of Service ), confinement for 30 days (23 April through 22 May 1970)

22.  On 27 April 1972 the Army Discharge Review Board denied his petition for an upgrade of his discharge.

23.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability.  When separation for unsuitability was warranted, an undesirable discharge was normally considered appropriate; however, an honorable or general discharge could be given.  The regulation stated in:

* Paragraph 6b - an individual was subject to separation for unfitness and unsuitability
* Paragraph 6b(2) - an individual was subject to separation for unsuitability due to character and behavior disorders as determined by medical authority
* Paragraph 6b(3) - an individual was subject to separation for unsuitability due to apathy (lack of appropriate interest, defective attitude, and inability to expend effort constructively  

24.  On 23 November 1972, Army Regulation 635-200 (Personnel Separations – Enlisted Separations) was published and became the governing regulation for the administrative separation of enlisted personnel, which included the categories of separations previously governed by Army Regulation 635-212.  

25.  A Department of the Army (DA) message # 302221Z, dated March 1976, changed “character and behavior disorder” to “personality disorder” and Army Regulation 635-200 was revised on 1 December 1976.  The regulation stated in paragraph 3-7a that 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.

26.  Army Regulation 635-5-1 (Separation Codes), in effect at the time of the applicant’s discharge, provided the specific authorities (regulatory or directive) for separating Soldiers from active duty and the SPN codes to be entered on the DD Form 214.  The SPN code of 264 was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-212 by reason of character and behavior disorder.  

27.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for the first award only, 1 year service entirely during the period 7 December 1941 through 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years, but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  There must have been no convictions by a court-marital.

28.  Army Regulation 600-8-22 (Military Award) states:

   a.  The National Defense Service Medal is awarded for honorable active service for any period between 27 June 1950 and 27 July 1954, both dates inclusive; between 1 January 1961 and 14 August 1974, both dates inclusive; between 2 August 1990 and 30 November 1995; and from 11 September 2001 to a date to be determined. 

   b.  The Armed Forces Expeditionary Medal is awarded to members of the Armed Forces of the United States who after 1 July 1958 participate, or have participated, in U.S. military operations, or U.S. operations in direct support of the United Nations, or U.S. operations of assistance for friendly foreign nations.  Tables 2-2 of the regulation shows the Armed Forces Expeditionary Medal was designated for service in Korea from 1 October 1966 through 30 June 1974.

   c.  Awards made by the President, the Secretary of Defense, and the Secretary of the Army (i.e., personal decorations and the Army Good Conduct Medal) will be announced in Department of the Army general orders.

   d.  The Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who served on active duty in support of the defense of the Republic of Korea.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  With regard to correction of the applicant's DD Form 214 to shows all awards that he is entitled to for his overseas service:

   a.  The evidence shows he was awarded the Armed Forces Expeditionary Medal for his period of service in Korea and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  Therefore, his DD Form 214 should be correction to show these awards.

   b.  He served a qualifying period of service for award of the Korea Defense Service Medal.  Therefore, his DD Form 214 should be corrected to show this award.

2.  With regard to item 11c of his DD Form 214:

   a.  The evidence shows the applicant's unit commander initially recommended the applicant be separated under the provisions of Army Regulation 635-212, paragraph 6b (2).  That action was returned to the applicant's unit because the cited authority had not been determined by a medical authority.  Further elimination action was requested.   

   b.  His unit commander returned the elimination request citing the applicant's separation is based on unsuitability.  A board of officers recommended his discharge for unsuitability and the separation authority approved that discharge.  His separation under the provisions of paragraph 6b (2) was not further indicated.

   c.  It appears that, despite the deficiency correction pertaining to his discharge under the aforementioned paragraph, he was issued a DD Form 214 with the SPN 264 indicating he was separated for a character and behavior disorder.  In view of his record, it appears paragraph 6b (3) would more appropriately described the reason for discharge for unsuitability.  

   d.  Therefore, it would be appropriate to correct item 11c of his DD Form 214 by deleting the entry, "SPN 264" and replacing it with the entry, "paragraph 6b (3)."

3.  With regard to an upgrade of his general discharge to an honorable discharge:

   a.  His company commander recommended the applicant be discharged for unsuitability.  The applicant elected to have his case heard by a board of officers. The board found that the applicant was unsuitable for further retention in the military service because of his undesirable habits and traits of character manifested by repeated commission of offenses which were prejudicial to good order and discipline in the U.S. Army.  The board recommended the applicant be separated with a General Discharge Certificate.  The separation authority approved the board's recommendation and he was discharged accordingly on 10 July 1970.

   b.  It appears his good and satisfactory ratings and his service in Korea were the basis for his receiving a general discharge and being separated in pay grade E-2 instead of an undesirable discharge and reduction to pay grade E-1.

   c.  He did not provide sufficient evidence or a convincing argument to show his general discharge should be upgraded and his military records nor does the evidence of record show an upgrade of his discharge is warranted.  The evidence shows his negative disciplinary record and refusal to work diminished the quality of his service below that meriting a fully honorable discharge.
   d.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to the requested relief and issuance of an Honorable Discharge Certificate.

4.  With regard to award of the Army Good Conduct Medal:

   a.  The evidence shows he had three NJPs and a conviction by a summary court-martial .  He received conduct and efficient ratings of "good," "unsatisfactory," and "satisfactory" during his period of service.

   b.  By regulation the Army Good Conduct Medal is awarded on a selective basis to each Soldier who distinguished himself from among his fellow Soldiers by their exemplary conduct, efficiency, and fidelity throughout a specified period of continuous enlisted active Federal military service.  Also, the Solder must have received all "excellent" conduct and efficiency ratings with no convictions by a court-marital.

   c.  There is no right or entitlement to the medal until the immediate commander has approved the award and the award has been announced in permanent orders.  There is neither a favorable recommendation nor any official orders to support his request.

   d.  In view of the foregoing, he is not entitled to award of the Army Good Conduct Medal and its addition to his DD Form 214.

5.  The evidence shows he did not complete a qualifying period of service for the National Defense Service Medal.  By regulation, the medal is awarded for honorable active service.  Therefore, he is not entitled to the addition of his medal to his DD Form 214.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* adding to his DD Form 214 the:

* Armed Forces Expeditionary Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Korea Defense Service Medal

* deleting from item 11c of this form the entry, "SPN 264" and replacing it with the entry, "paragraph 6b (3)."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* upgrading his general discharge to an honorable discharge
* issuance of an Honorable Discharge Certificate
* awarding the Army Good Conduct Medal 
* adding to his DD Form 214 the: 

* Army Good Conduct Medal
* National Defense Service Medal
* any other awards


      _______ _   _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)                                         AR20140017102



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ABCMR Record of Proceedings (cont)                                         AR20140017102



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