IN THE CASE OF:  	  

		BOARD DATE:  	  9 July 2015

		DOCKET NUMBER:  AR20140019622


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 from under other than honorable conditions to an honorable discharge.  

2.  The applicant states he believes his court martial was unfair and he was singled out during his period of military service.  He further states the military was undergoing a severe racial problem and he became a victim of it. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

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 30 November 1966.  He completed his initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3. 

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

     a.  On 9 March 1967, at Fort Polk, LA, for failing to go at the prescribed time to his appointed place of duty.

     b.  On 5 June 1967, at Oakland, CA, for missing his flight through neglect on or about 15 May 1967, for absenting himself from his unit without proper authority on or about 17 May 1967, and for remaining absent until on or about 4 June 1967. 

     c.  On 21 June 1967, at Oakland CA, for absenting himself from his unit without proper authority on or about 19 June 1967, and for remaining absent until on or about 21 June 1967. 

     d.  On 1 September 1967, at Chu Lai, South Vietnam, for absenting himself from his appointed place of duty on or about 24 August 1967, and for remaining absent until on or about 28 August 1967.  

4.  DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) shows:

     a.  He was convicted by a special court-martial, as promulgated in Special Court Martial Order Number 31, of willfully disobeying a lawful order from a noncommissioned officer of the 7th Support Battalion, 199th Infantry Brigade (Separate)(Light), APO, San Francisco, on or about 15 October 1967.  The court sentenced him to confinement at hard labor for six months and a forfeiture of pay per month for 6 months.  The sentence was approved on 4 December 1967.

     b.  He was convicted by a special court-martial, as promulgated in Special Court Martial Order Number 12, issued by 2nd Battalion, 3d Infantry, 199th Infantry Brigade (Separate) (Light), on three charges: 

		(1) Charge 1 – absenting himself from his unit without proper authority on or about 1 May 1968, and for remaining absent until on or about 30 May 1968;
 
		(2)  Charge 2 – willfully disobeying the lawful order of a superior officer; and
		(3)  Charge 3 – violating a lawful general regulation, paragraph 11 of U.S. Army Regulation Vietnam (USARV) Regulation 60-7, on 30 May 1968, by having on his possession 3 ration cards that did not belong to him.

The court sentenced him to confinement at hard labor for 6 months and a forfeiture pay per month for 6 months.  The sentence was approved on 19 June 1968.

5.  A complete separation packet is not available for review in this case; however, a duly-constituted DD Form 214 shows he was discharged on 25 October 1968, under the provisions of Army Regulation 635-212, by reason of unfitness (frequent involvement in incidents of discreditable nature with civil or military authorities).  He completed 11 months, and 22 days of total active service and 364 days of lost time.  He was discharged under other than honorable conditions. 

6.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 17 December 1975, he appeared before the ADRB and the ADRB determined his discharge was both proper and equitable and denied his request for an upgrade. 

7.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

8.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy 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 under other than honorable conditions discharge to an honorable discharge was carefully considered.  

2.  His complete separation packet is not available for review; however, his records contain a duly-constituted DD Form 214 that confirms he was discharged under the provisions of Army Regulation 635-212, by reason of unfitness, frequent involvement in incidents of discreditable nature with civil or military authorities, with an under other that honorable conditions characterization of service.  

3.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary. 

4.  He contends the military was undergoing a severe racial problem and he became a victim of the racial problems.  However, nothing in his records supports his contention nor has he provided any evidence to support his contention.  He was twice convicted by special courts-martial and he had multiple instances of AWOL and NJP.  His misconduct was the reason for his discharge, as evident by the reason shown on his DD Form 214. 

5.  The applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.   Based on his record of indiscipline, and 364 days of lost time, his service clearly does not merit an upgrade of his discharge.  Therefore, there is no evidence to support a change in his discharge to general or honorable. 

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)                                         AR20140012006



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ABCMR Record of Proceedings (cont)                                         AR20140019622



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