BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20140018012 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states, in effect:

	a.  He was given a dishonorable discharge instead of a bad conduct discharge at his court-martial.

	b.  He believes a colonel at Fort Sam Houston had a biased opinion of him at his court-martial hearing.  He had a negative encounter with the colonel before his court-martial hearing because he wouldn't salute the colonel.  He told the colonel he felt the colonel was no better than him.  He was court-martialed for being absent without leave (AWOL) and being insubordinate to an officer.

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 enlisted in the Regular Army on 9 June 1969 for 2 years.  He completed basic combat training.

3.  On 28 November 1969, he was convicted by a summary court-martial of being AWOL from 2 November 1969 to 3 November 1969 and from 8 November 1969 to 14 November 1969.  He was sentenced to confinement at hard labor for 30 days, forfeiture of $67.00 pay per month for 1 month, and reduction to E-1.  On 2 December 1969, the convening authority approved the sentence.

4.  On 2 February 1970, nonjudicial punishment (NJP) was imposed against him for failing to obey a lawful order (traveling into Mexico without a properly-executed DA Form 31 (Request and Authority for Leave) in his possession).

5.  On 1 July 1970, he was convicted by a special court-martial of being AWOL from 13 February 1970 to 12 March 1970 and from 18 March 1970 to 21 May 1970.  He was sentenced to confinement at hard labor for 4 months and forfeiture of $50.00 pay per month for 4 months.  On 9 July 1970, the convening authority approved the sentence, but suspended confinement in excess of 1 month for 3 months.

6.  Records show he was again AWOL from 28 July 1970 to 3 November 1970.

7.  On 10 November 1970, he underwent a psychiatric evaluation and was diagnosed with a severe passive-aggressive personality.  There were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  The psychiatrist determined the applicant would not adjust to further military service and rehabilitative efforts would probably not be productive.  He was cleared for any administrative decision deemed appropriate by his command.

8.  On 23 November 1970, the applicant's unit commander initiated action to separate him for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  Trial by court-martial was considered; however, in view of the applicant's poor attitude, unwillingness to serve, and the psychiatric report confirming the futility of further rehabilitative efforts, administrative elimination was considered more appropriate.  The unit commander recommended the applicant's discharge due to the severe nature of his psychiatric evaluation, excessive time lost in the service, resistance to authority and regulations, and a pattern of behavior which rendered him a complete loss to the service.

9.  He consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement in his own behalf.

10.  On 3 December 1970, the separation authority approved the recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate.

11.  On 14 December 1970, he was discharged for unfitness under the provisions of Army Regulation 635-212 due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  He completed 8 months and 22 days of total active service with 287 days of lost time.  His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate.

12.  There is no indication the applicant applied to the Army Discharge Review Board for a review of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, 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 evidence of record does not support the applicant's contention that he was court-martialed for insubordination.  There is no evidence of record and he provided no evidence showing he was court-martialed for insubordination.

2.  Although he implied he received a dishonorable discharge, the evidence shows his service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate.

3.  His brief record of service included one NJP, one summary court-martial conviction, one special court-martial conviction, and 287 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to an honorable or a general discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing evidence, there is no basis for granting the applicant's 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 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)                                         AR20140018012



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ABCMR Record of Proceedings (cont)                                         AR20140018012



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