BOARD DATE:	  11 June 2015

		DOCKET NUMBER:  AR20140017849 


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 reconsideration of his earlier request for an upgrade of his undesirable discharge. 

2.  The applicant states he was a young and confused Vietnam veteran at the time.  He experienced prejudice and his records show the prejudice that followed him.  He suffered throughout his life due to the Army's decision. 

3.  The applicant does not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130012580, on 24 April 2014.

2.  The applicant provides a new argument which warrants consideration by the Board. 

3.  The applicant's records show he was born on 14 May 1951 and he was inducted into the Army of the United States at nearly 20 years of age on 11 March 1971.  He was trained in and held military occupational specialty 94B (Cook). 

4.  He served in Vietnam from on or about 25 August 1971 to 24 February 1972.  He was assigned to Company B, 31st Engineer Battalion.  

5.  While in Vietnam, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 28 January 1972, twice failing to go at the time prescribed to his appointed place of duty and leaving his appointed place of duty without authority
* 18 February 1972, violating a general regulation by travelling without a travel form and being absent without leave (AWOL) on 30 January 1972

6.  He was honorably discharged on 24 July 1972 for the purpose of immediate enlistment in the Regular Army (RA).  His DD Form 214 shows he completed 
1 year, 4 months, and 4 days of active service.  He was awarded or authorized the: 

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* one overseas service bar

7.  The applicant enlisted in the RA at 21 years and 2 months of age on 25 July 1972.  Following completion of his Vietnam tour, he was reassigned to Fort Dix, NJ.  

8.  On 7 November 1972, while at Fort Dix, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 27 September to
19 October 1972 and on 2 November 1972.

9.  While attached to the U.S. Army Garrison, Annville, PA, he again accepted NJP under the provisions of Article 15 of the UCMJ on/for: 

* 31 May 1973, being AWOL from 29 to 30 May 1973
* 21 September 1973, being AWOL from 10 to 18 September 1973

10.  Upon his return to Fort Dix, he again accepted NJP under the provisions of Article 15 of the UCMJ on/for: 

* 11 October 1973, disobeying a lawful order and being AWOL on 17 October 1973
* 13 November 1973, willfully disobeying a lawful order and failing to report to his appointed place of duty

11.  On 8 November 1973, the applicant's immediate commander notified the applicant of his intent to initiate elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unfitness.  The immediate commander cited the applicant's frequent incidents of a discreditable nature.  He cited his negative counseling, multiple instances of NJP, history of being AWOL, and other infractions. 

12.  On 13 November 1974, the applicant acknowledged receipt of the separation memorandum, he consulted with legal counsel, and he was advised of the basis for the contemplated separation 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 that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could 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 in the event an undesirable discharge under other than honorable conditions was issued to him.  He requested consideration of his case by a board of officers and a personal appearance before a board of officers.

13.  Accordingly, the applicant's immediate commander initiated separation action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness.  The immediate commander remarked that the applicant’s record and his failure to react constructively to the rehabilitation efforts indicated that he should not have been retained in the Army. He had received considerable counseling, but he did not respond favorably.  His chain of command recommended approval of the discharge action.  

14.  On 13 February 1974, a board of officers convened with the applicant present.  The board carefully considered all the evidence before it and recommended the applicant be discharged from the service by reason of unfitness with an undesirable discharge.  

15.  On 22 February 1974, he was convicted by a special court-martial of two specifications of being AWOL from 28 to 31 January and 6 to 8 February 1974.  The court sentenced him to a confinement at hard labor for 15 days and a forfeiture of pay.  The convening authority approved the sentence at a later date. 

16.  On 14 March 1974, the convening/separation authority approved the findings and recommendations of the board of officers and ordered the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness and directed he be furnished an Undesirable Discharge Certificate.  On 22 March 1974, the applicant was accordingly discharged.

17.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged with a character of service of under other than honorable conditions and he was issued an Undesirable Discharge Certificate. This form further confirms that he completed 1 year, 5 months, and 25 days of creditable active military service during this period and he had 62 days of lost time.

18.  On 21 November 1980, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable.  Accordingly, the ADRB denied his request for an upgrade of his discharge. 

19.  On 28 April 2014, the ABCMR also reviewed his discharge but found insufficient evidence of an error or an injustice.  Accordingly, the ABCMR denied his request for an upgrade of his discharge. 

20.  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 states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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 records reveal an extensive history of misconduct that included multiple instances of NJP, multiple instances of being AWOL, a court-martial conviction, and an extensive history of negative counseling.  It appears he was provided counseling and/or multiple opportunities for rehabilitation by various members of his chain of command, but he failed to respond constructively.  

2.  His discharge was processed in accordance with applicable regulations and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service

3.  The applicant was 20 years of age when he was inducted into the Army of the United States and over 21 years of age when he enlisted in the RA.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

4.  The applicant's service in Vietnam is noted.  However, it does not outweigh the misconduct committed by him.  Additionally, although he provides no evidence that his misconduct was caused by "prejudice," even if his contention was corroborated, there would have been many other legitimate avenues to address such issue.  

5.  Based on the available record his service appears not to have met the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  In view of the foregoing, he is not entitled to an upgrade of his 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 to amend the decision of the ABCMR set forth in Docket Number AR20130012580, dated 24 April 2014.



      _______ _  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)                                         AR20140017849



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ABCMR Record of Proceedings (cont)                                         AR20140017849



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