IN THE CASE OF:  	  

		BOARD DATE:  11 June 2015	  

		DOCKET NUMBER:  AR20140018142 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he should have been discharged based on being unsuitable for military service with an honorable characterization of service.

3.  The applicant provides a brief in support of his application for correction of his military record.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests upgrade of the applicant's undesirable discharge to an honorable discharge.

2.  Counsel states, in effect:

   a.  The applicant's discharge should be upgraded because he experienced mitigating circumstances while in a training status which led to severe psychological stress from the tragic events of his father's death.

   b.  There was no formal or informal counseling conducted before the onset of the applicant's disciplinary action.  There was no intervention, warning, guidance, or opportunity for the applicant to be rehabilitated.  The applicant should have been discharged base on his inability to adapt to military life.

   c.  He received no protection of his rights, administratively or constitutionally, nor were there critical issues brought forth during his court-martial proceedings.  The counsel(s) appointed to represent him were inadequate and failed to provide proper representation.

   d.  His discharge is inequitable because current policies and procedures differ from those under which the applicant was separated.  There is substantial doubt the applicant would have received the same characterization of his discharge if Army Regulation 612-201 (Initial Entry/Prior Service Trainee Support), paragraph 3-11(d), and Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) had been in effect.  Based on his good service record an honorable discharge would be presumed.
   
   e.  The evidence of record confirms the applicant was discharged with an undesirable discharge, characterized as under other than honorable conditions, on 28 August 1970, under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), chapter 10 (sic).

3.  Counsel provides a 12-page brief in support of the applicant's request.

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.  On 18 August 1969, the applicant enlisted in the Regular Army.  He was over 18 years of age and he enlisted for a period of 2 years.  Evidence shows he successfully completed basic combat training at Fort Campbell, KY, and he received excellent conduct and efficiency ratings during this period.

3.  On 18 October 1969, the applicant was assigned to Fort Jackson, SC, for advanced individual training in military occupational specialty 64A (Light Vehicle Driver).  His DA Form 20 (Enlisted Qualification Record) indicates he was absent without leave (AWOL) during the periods 3 through 5 and 22 through 
24 November 1969.  No punishment was found in the record for these two offenses.

4.  On 26 June 1970, he was convicted by a special court-martial at Fort Carson, CO, pursuant to his guilty pleas of being AWOL from 6 December 1969 to            14 May 1970 and from 2 to 8 June 1970.  He was sentenced to hard labor for     6 months.  The sentence was approved and adjudged and on 7 July 1970, he was transferred to the Correctional Training Facility (CTF), Fort Riley, KS.

5.  On 24 July 1970, he was convicted by a special court-martial pursuant to his guilty pleas of behaving himself with disrespect toward a superior commissioned officer by refusing to salute when leaving the office and by saying "You can put that down too" or words to that effect as he walked out and for disobeying a lawful command to fall out to join the unit formation.  He was sentenced to confinement to hard labor for 4 months and to forfeit $30.00 pay per month for    6 months.  The sentence was approved and adjudged on 24 July 1970, and he was confined at the CTF, Fort Riley, KS.

6.  A Mental Hygiene Consultation Service psychiatric evaluation statement, dated 21 July 1970, shows there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels and he had the mental capacity to understand and participate in board proceedings.  It further states:

   a.  The applicant was 21 years of age, married and the father of one child.  He was being considered for administrative discharge.  He claimed he first went AWOL for 22 days because his child had to have an operation.  He claimed his second AWOL was the result of his father's death after his commanding officer refused to give him a leave of absence.  

   b.  He subsequently developed an extremely negative attitude toward the service and refused to complete his tour of duty.  He stated he hated the Army, refused to complete his tour of duty and would take any type of discharge.  It was believed that he would not adjust to military service and further rehabilitative efforts would be non-productive.

7.  On 14 August 1970, the applicant's commander notified him that he had initiated action to separate him from the service for unfitness.  The specific allegations which were the basis for the proposed action were his conviction by two special courts-martial and his involvement in frequent incidents of a discreditable nature with military authorities.  

8.  Intensive counseling by his leadership team and social worker failed to produce any change in the applicant's attitude and motivation.  It was felt that any further attempt to change his adamant lack of desire would be futile.  It was further noted the applicant received considerable counseling since his arrival at CTF by social workers, leadership team, and unit cadre.  The applicant did not respond favorably to the counseling nor the duties given to him and he did not meet the criteria for further rehabilitative attempts.

9.  On 14 August 1970, he acknowledged that he was advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-212.  He acknowledged he understood if an undesirable discharge under conditions other than honorable were issued to him he might be ineligible for many or all benefits as a veteran under both Federal and State laws. The applicant then waived his rights.  He did not submit a statement in his own behalf.

10.  On 14 August 1970, his chain of command recommended his discharge from the military under the provisions of Army Regulation 635-212 for unfitness with an undesirable discharge.

11.  On 24 August 1970, the separation authority approved the recommendation that the applicant be discharged from the service under the provisions of Army Regulation 635-212 and directed the applicant be furnished an Undesirable Discharge Certificate.

12.  On 28 August 1970, he was given an undesirable discharge under the provisions of Army Regulation 635-212 with a separation program number code of 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities).  His service was characterized as under conditions other than honorable.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed a total of 3 months and 24 days of active military service with six periods of time lost due to AWOL and confinement.

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

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

15.  Army Regulation 612-201 (Initial Entry/Prior Service Trainee Support) prescribes policy for processing and reporting initial entry Soldiers from time of arrival at a U.S. Army Reception Battalion to completion of advanced individual training or departure to their permanent duty station.  Paragraph 3-11(d) states "Early identification of personnel ineligible for the training assignments issued will assist in ensuring that training seats do not go unfilled."  

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel. 

   a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.
	
   b.  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.

	c.  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 and his counsel's contentions were carefully considered.  However, the evidence of record does not support their request for an upgrade of the applicant's undesirable discharge.

2.  The applicant and his counsel provide insufficient evidence to support their contention that the applicant experienced mitigating circumstances while in a training status which led to severe psychological stress from the tragic events of his father's death.  The applicant's age and trainee status at the time of his enlistment and service are noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges. In addition, a psychiatric evaluation prior to the applicant's discharge showed he suffered from no disqualifying mental or physical defects.  Therefore, these issues are insufficient to support a change to a properly-issued discharge.

3.  With regard to counsel's claim that the applicant did not receive counseling or an opportunity for rehabilitation, evidence clearly shows the applicant received intensive counseling by his leadership team which failed to produce any change in the applicant's attitude and motivation.  The applicant did not respond favorably to counseling and the applicant stated he hated the Army, refused to complete his tour of duty and would take any type of discharge.  It was believed that he would not adjust to military service and further rehabilitative efforts would be non-productive.  

4.  Counsel claims the applicant's rights were not protected nor were critical issues brought forth during his court-martial proceedings.  Additionally, the counsel(s) appointed to represent him were inadequate and failed to provide proper representation.  However, while the complete facts and circumstances surrounding the applicant's representation at his two special court-martial proceedings are not evident in the record, the evidence shows the applicant pled guilty to all charges in both instances.

5.  Counsel claims the applicant's discharge is inequitable because current policies and procedures differ from those under which the applicant was separated.  He claims there is substantial doubt the applicant would have received the same characterization of his discharge if Army Regulation 612-201, paragraph 3-11(d) and Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) had been in effect. 

6.  However, counsel mistakenly believes the applicant was discharged under the provisions of “Army Regulation 635-212, chapter 10.”  The evidence clearly shows the applicant was given an undesirable discharge under the provisions of Army Regulation 635-212 with a separation program number code of 28B for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  His record reveals a disciplinary history that includes two convictions by court-martial.  Accordingly, his chain of command recommended his elimination from the Army for unfitness. His discharge was processed in accordance with applicable regulations, 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.

7.  Counsel's contention that the applicant would have received a more advantageous characterization of his discharge if Army Regulation 612-201, paragraph 3-11(d) and Army Regulation 635-200 had been in effect is incorrect.  Counsel appears to contend the applicant would have received a more favorable characterization of his discharge if the applicant had been identified early as ineligible for his advanced individual training assignment.  However, the evidence shows the applicant successfully completed basic training.  His misconduct was the result of his own choices subsequent to basic training. 

8.  There is insufficient evidence in the available record, and the applicant and his counsel have failed to provide substantiating evidence, which shows his extensive misconduct was the result of any reason other than the choices he made.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general 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)                                         AR20140018142





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ABCMR Record of Proceedings (cont)                                         AR20140018142



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