IN THE CASE OF:	  

		BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20140018305 


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 an upgrade of his undesirable discharge.  

2.  The applicant states, in effect, his misconduct was as a result of indifference with his first sergeant (1SG) after his tour in Vietnam.  

3.  The applicant provides no additional evidence in support of his 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.  The applicant enlisted in the Regular Army on 20 June 1967.  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from 6 November 1967 to 2 June 1969.

3.  He was honorably discharged for the purpose on immediate reenlistment on 
17 September 1969.  He reenlisted for a period of 6 years on 18 September 1969.  

4.  He accepted nonjudicial punishment on:

	a.  9 March 1970, for disobeying a lawful order from his 1SG; specifically, for failing to place his duffle bag on the top of his locker and for being absent from his place of duty for approximately 50 minutes on 9 March 1970;

	b.  9 May 1970, for two specifications of failing to go to his appointed place of duty; specifically, for missing bed check.  

5.  His complete separation proceedings are not available.  

6.  His available records include an undated document showing an officer exercising general court-martial authority waived the applicant's rehabilitation under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge for Unfitness and Unsuitability), paragraph 7c(2).  This document also shows he was being processed for separation for unfitness.  

7.  His records also include a DA Form 137 (Installation Clearance Record) that indicates his conduct and efficiency were rated as "unsatisfactory" and he was not recommended for the Army Good Conduct Medal.

8.  Special Orders 125, dated 29 June 1970, issued by Headquarters, U.S. Army Personnel Center, Fort Hamilton, NY, directed his discharge, effective 29 June 1970, under the provisions of Army Regulation 635-212 with service characterized as under conditions other than honorable.

9.  He was discharged from the Army, on 29 June 1970, with an Undesirable Discharge Certificate.

10.  There is no evidence that indicates he applied to the Army Discharge Review Board for an upgrade of his discharge.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  

	a.  Paragraph 6a states that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of 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.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

	b.  Paragraph 7c(2) states that the general court-martial convening authority may waive counseling and rehabilitation requirements when he determined that further duty of the individual will create a hazard to the military mission or to the individual.  

12.  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 applicant's request for an upgrade of his undesirable discharge was carefully considered.

2.  His complete separation proceedings are not available.  Therefore, it is presumed his separation processing was accomplished in accordance with the applicable regulation at the time.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Although his record only shows he committed acts of misconduct that could be considered minor in nature, without his complete separation packet, and absent evidence showing error or injustice in his separation processing, administrative regularity must be presumed in this case.  
4.  The applicant has failed to show that his discharge processing and/or the character of service were in error or unjust.  As a result, there is no basis for granting the 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 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)                                         AR20140018305



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ABCMR Record of Proceedings (cont)                                         AR20140018305



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