IN THE CASE OF:	  

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140019534 


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 correction of his military records by upgrading his general discharge (GD) to an honorable discharge (HD).

2.  The applicant states he was intimidated into accepting the GD.  He contends that such action happened a lot during the Vietnam era.

3.  The applicant indicates that he provided a copy of his DD Form 214; however, it was not attached to his application.

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 19 May 1971, the applicant enlisted in the Regular Army.  He completed his initial training as a basic field artilleryman.

3.  The applicant accepted the following nonjudicial punishments (NJP):

	a. 9 June 1971, for assaulting another Soldier;

	b.  13 December 1971, for presenting a voucher for payment knowing it to be false and fraudulent;

	c.  26 October 1972, for twice failing to go to his appointed place of duty;

	d.  29 December 1972, for failing to go to his appointed place of duty; and

	e.  14 February 1973, for being drunk and disorderly and assaulting two Soldiers.

4.  On or about 21 February 1973, the commander notified the applicant of his intention to separate him from the service due to unsuitability under the provisions of Army Regulation 635-200, Chapter 13.

5.  On 21 March 1973, the applicant's commander recommended he be eliminated from the service due to unsuitability.  The commander stated that the applicant had been welcomed into the unit for the purpose of rehabilitation.  His performance of duty was unsatisfactory and he was barred from reenlistment.

6.  On or about 25 March 1973, the applicant consulted with counsel.  He elected to waive counsel and declined to make a statement in his own behalf.

7.  On 18 April 1973, the appropriate authority approved the recommendation and directed that he be issued a DD Form 257A (General Discharge Certificate).

8.  On 4 May 1973, the applicant was accordingly discharged.  He had completed 1 year, 11 months, and 10 days of creditable active service.  His DD Form 214 shows he received an under honorable conditions characterization of service.

9.  On 17 January 1979, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.



10.  Army Regulation 635-200 (Personnel Separations):

	a.  Chapter 13, applied to separation for unfitness and unsuitability.  At that time, the regulation required that separation action be taken, when in the commander’s judgment the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

	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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his GD should be upgraded to an HD because he was intimidated into accepting the discharge.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

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

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  He was considered to be unsuitable for further military service and he was accordingly separated with less than an honorable characterization of service.

5.  There is no evidence of error or injustice in what the Army did in the applicant’s case.

6.  The applicant's argument that he was intimidated or coerced into accepting his discharge is not supported by any documented evidence of record.  The applicant has not offered any corroborating evidence.

7.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140019075



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ABCMR Record of Proceedings (cont)                                         AR20140019534



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