IN THE CASE OF:	  

		BOARD DATE:	  23 July 2015

		DOCKET NUMBER:  AR20140020916 


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 that his undesirable discharge be upgraded to a more favorable discharge.

2.  The applicant states that he was not told what type of discharge he was getting and he would not have gotten out of the Army had he known.

3.  The applicant provides no additional documents with 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.  The applicant enlisted in the Regular Army on 7 September 1972 for a period of 4 years, a cash enlistment bonus and assignment to Europe.  He completed his basic training at Fort Ord, California and his advanced individual training as a light weapons infantryman at Fort Polk, Louisiana and was transferred to Germany on 3 February 1973 for assignment to the 52nd Infantry Regiment.

3.  On 20 April 1973, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from a superior noncommissioned officer (NCO).

4.  On 6 June 1973, he was convicted by a summary court-martial of failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order from a superior NCO and disobeying a lawful written order from a superior commissioned officer.  He was sentenced to perform hard labor without confinement for 45 days, a forfeiture of pay and reduction to pay grade E-1.

5.  On 26 July 1973, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty and being derelict in his duties as a guard by leaving his post without being properly relieved.

6. On 5 October 1973, NJP was imposed against him for being disorderly at the NCO Club by throwing rocks at passing cars, disobeying a lawful order from a superior NCO, and two specifications of failing to go at the time prescribed to his appointed place of duty. 

7.  On 1 April 1974, he was convicted by a special court-martial of disobeying a lawful order from a superior NCO.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of pay for 4 months.  He was transferred to the U.S. Army Retraining Brigade at Fort Riley, Kansas to serve his confinement and his conduct and efficiency ratings were deemed to be unsatisfactory.

8.  The facts and circumstances surrounding the applicant’s administrative separation are not present in the available records as they were loaned to the Department of Veterans Affairs in Waco, Texas on 31 August 1974.  However, his records do contain a DD Form 214 which shows he was discharged under other than honorable conditions on 20 June 1974 under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for unfitness due to his frequent involvement in incidents of a discreditable nature with military and/or civil authorities.  He had served 1 year, 6 months, and 8 days of total active service and with 96 days of lost time due to confinement.

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

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 established policy and procedures for separating personnel for unfitness.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  A discharge under other than honorable conditions was normally considered appropriate.

	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.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant's contentions have been noted; however, they are not supported by either the evidence submitted with his application or the evidence of record.  The applicant's misconduct consisted primarily of his refusal to follow orders and to go to work as ordered.  He was afforded numerous opportunities to rehabilitate himself; however, his misconduct continued up until the time of his discharge.  Therefore, it appears that his record of undistinguished service does rise to the level of a general or an honorable discharge and does not warrant an upgrade.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140020916





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ABCMR Record of Proceedings (cont)                                         AR20140020916



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