BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20140019592 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states:

* his character of service is inequitable because it was based on one isolated incident out of 15 months of service with no other adverse actions
* he was not represented by a lawyer
* he was forced to sign documents while in custody without knowing what he was charged with or what a discharge in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) was
* he was picked up one morning while in formation and told to come with the military police, after which he was put in jail with no charges
* a week later he was forced to sign some papers and told he would be released, only he did not know he was receiving a chapter 13 discharge
* the fact that the Army was still using these practices on servicemen to weed out undesirable individuals without providing an appropriate service characterization was unconstitutional
* the U.S. District Court for the District of Columbia previously ruled that a former service member was entitled to an honorable discharge in a civil action (Number 77-0904)
* although it has been over 40 years since his service and he is in some ways content with his short stay in the Army, he feels he did nothing to deserve this type of discharge

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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 4 June 1975, the applicant enlisted in the Regular Army.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following occasions as indicated:

* 1 December 1975 for failing to report to his appointed place of duty on 18 November 1975
* 12 March 1976 for being absent without authority (AWOL) from 4 March 1976 to 8 March 1976
* 12 May 1976 for failing to go to his prescribed place of duty on 12 May 1976
* 6 June 1976 for being AWOL from 17 December 1975 to 30 December 1975

4.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 13 July 1976, shows the applicant's behavior was normal, he was fully alert and oriented, and was thinking clearly.  He had no significant mental illness and he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

5.  Records indicate his duty status was changed on the following additional occasions as indicated:

* from present for duty to AWOL from 26 July 1976 to 30 July 1976
* from present for duty to AWOL from 5 August 1976 to 6 August 1976
* from AWOL to dropped from the rolls on 6 August 1976
* from dropped from the rolls to present for duty on 30 August 1976

6.  On 17 September 1976, his commander notified him of initiation of action to separate him from the service for misconduct and frequent incidents of a discreditable nature with civil and military authorities pursuant to the provisions of Army Regulation 635-200, chapter 13.

7.  On 20 September 1976, he acknowledged he had been advised of the basis for the contemplated separation action.  He waived representation by counsel and consideration of his case by a board of officers.  He did not submit statements in his own behalf.  He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that he may be ineligible for many or all benefits as a veteran as the result of the issuance of a discharge under other than honorable conditions.

8.  On 1 October 1976, the separation authority waived further rehabilitative requirements and approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 13-5a(1), due to frequent acts of a discreditable nature with civil or military authorities with the issuance of an Undesirable Discharge Certificate.

9.  He was discharged accordingly on 15 October 1976.  He completed a total of 1 year, 2 months, and 17 days of creditable active military service.  His DD Form 214 shows he accrued 56 days of lost time.

10.  He applied to the Army Discharge Review Board for an upgrade of his discharge and on 11 January 1979.  The board unanimously voted to deny relief, determining his discharge was both proper and equitable.

11.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.

	a.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness which included frequent incidents of a discreditable nature.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

	b.  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.  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.

12.  Under the 27 November 1979 order of the U.S. District Court for the District of Columbia in Giles v. Secretary of the Army (Civil Action Number 77-0904), a former Army service member is entitled to an honorable discharge if a less than honorable discharge was issued to the service member who was discharged before 1 January 1975 as a result of an administrative proceeding in which the Army introduced evidence developed by or as a direct or indirect result of compelled urinalysis testing administered for the purpose of identifying drug abusers (either for the purpose of entry into a treatment program or to monitor progress through rehabilitation or follow up).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge under other than honorable conditions was carefully considered and determined to be without merit.

2.  His records reveal a history of disciplinary action that included infractions resulting in NJP on four occasions and five periods of AWOL.

3.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, due to frequent acts of a discreditable nature with civil or military authorities.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The available records show the decision of the U.S. District Court for the District of Columbia in Giles v. Secretary of the Army (Civil Action Number 77-0904) is not applicable to his case.

5.  The character of his service clearly did not rise to the level of conduct and performance of duty commensurate with a fully honorable discharge or a general discharge under honorable conditions.  In view of the foregoing evidence, there is no basis for upgrading 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 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)                                         AR20140019592



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ABCMR Record of Proceedings (cont)                                         AR20140019592



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