IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140010401 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge.  

2.  The applicant states he is requesting the upgrade of his discharge for financial reasons.

3.  The applicant provides 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 was inducted into the Army of the United States on 
15 September 1966.
3.  He accepted nonjudicial punishment (NJP) on the following dates:

	a.  6 October 1966, for disobeying a lawful order from his superior noncommissioned officer;

	b.  19 May 1967, for failing to go at the time prescribed to his appointed place of duty;

	c.  24 June 1967, for leaving his place of duty without authority;

	d.  29 June 1967, for failing to go at the time prescribed to his appointed place of duty and for breaking restriction.

4.  On 27 July 1967, he was found guilty by a special court-martial of:

* two specifications of failing to go at the time prescribed to his appointed place of duty
* leaving his appointed place of duty without proper authority
* being absent without leave (AWOL) from 11 July 1967 to 13 July 1967
* breaking restriction

5.  On 18 December 1967, he was found guilty by a special court-martial of committing sodomy.

6.  On 14 January 1969, he was found guilty by a special court-martial of:

* being AWOL from 11 November 1968 to 15 November 1968
* being AWOL from 16 November 1968 to 19 November 1968
* two specifications of failing to go at the time prescribed to his appointed place of duty

7.  On 17 June 1968, his immediate commander recommended his discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness, with an Undesirable Discharge Certificate.  His commander stated the reason for the proposed separation action was the applicant's frequent incidents of a discreditable nature with military authorities.  

8.  The applicant consulted with legal counsel.  He was advised of the basis for the contemplated separation action and his right to present his case before a board of officers, to submit a statement in his own behalf, and to be represented by counsel.  He elected to waive his rights.  He also indicated that he understood he might expect to encounter substantial prejudice in civilian life by reason of a general discharge under honorable conditions.  He also acknowledged that he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life as a result of an undesirable discharge under conditions other than honorable.

9.  On 28 January 1969, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 and directed the issuance of an Undesirable Discharge Certificate.  On 10 February 1969, he was discharged accordingly.

10.  On 20 January 1981, the Army Discharge Review Board denied his request for a discharge upgrade.

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.  Paragraph 6a of the regulation provided 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 (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 under other than honorable conditions discharge was carefully considered.  

2.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  He consulted with legal counsel, he was advised of the basis for the separation action, and he was provided the opportunity to present his case before a board of officers, which he elected not to do.  Therefore, all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His record of indiscipline includes NJP on four occasions for acts of misconduct and three special court-martial convictions.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

4.  In view of the foregoing, 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)                                         AR20140010401



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ABCMR Record of Proceedings (cont)                                         AR20140010401



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