IN THE CASE OF:	  

		BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20150000085 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he didn't want to be discharged from service.  He claims he testified before a congressional committee about the death of a Vietnam veteran and was told to get out of the Army or if he stayed he would be killed.

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 4 October 1966.  Evidence shows he successfully completed basic combat training at Fort Jackson, SC, and he received excellent conduct and efficiency ratings during this period.

3.  On 13 March 1967, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for absenting himself from his place of duty from 2 to 3 March 1967.

4.  On 30 October 1967, he was convicted by a special court-martial at Fort Dix, NJ, pursuant to his guilty plea of, without authority, being absent from his unit  from 25 May to 6 September 1967.  

5.  On 12 December 1967, the applicant accepted NJP under the provisions of Article 15, UCMJ for absenting himself from his unit from 7 to 11 December 1967.

6.  On 7 October 1968, he was convicted by a special court-martial pursuant to his guilty plea of, without authority, absenting himself from his unit for the period 5 January to 8 August 1968.  He was sentenced to confinement to hard labor for 6 months and to forfeit $73.00 pay per month for 6 months.  The sentence was adjudged on 7 October 1968, approved on 8 October 1968, and he was confined at the Post Stockade, Fort Dix, NJ.

7.  On 8 October 1968, the applicant's commander notified him that he had initiated action to separate him from the service for unfitness.  The commander noted evidence shows the applicant's past performance was characterized by frequent incidents of absent without leave (AWOL) which rendered him subject to punitive action and his behavior is not due to an incapacity to become a satisfactory Soldier within the meaning of unsuitability.  There appeared to be no grounds for rehabilitative transfer for the Soldier to Fort Riley, KS.

8.  The applicant acknowledged that he was advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-212.  He acknowledged he understood if an undesirable discharge under conditions other than honorable were issued to him he might be ineligible for many or all benefits as a veteran under both Federal and State laws. The applicant then waived his rights.  He did not submit a statement in his own behalf.

9.  A Mental Hygiene Consultation Service psychiatric evaluation statement, dated 23 October 1968, shows there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels and he had the mental capacity to understand and participate in board proceedings.  
10.  On 5 November 1968, his chain of command recommended his discharge from the military under the provisions of Army Regulation 635-212 for unfitness with an undesirable discharge.

11.  On 8 November 1968, the separation authority approved the recommendation that the applicant be discharged from the service under the provisions of Army Regulation 635-212 and directed the applicant be furnished an Undesirable Discharge Certificate.

12.  On 20 November 1968, he was given an undesirable discharge under the provisions of Army Regulation 635-212 with a separation program number code of 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities).  His service was characterized as under conditions other than honorable.  His DD Form 214 shows he completed a total of 2 months and 10 days of active military service with 472 days of lost time due to being AWOL and/or confined.

13.  His record is void of evidence and the applicant provides insufficient evidence to support his claim that he testified before a congressional committee about the death of a Vietnam era veteran or that he was told to get out of the Army or if he stayed, he would be killed.

14.  On 5 August 1974, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

15.  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 stated an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) 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.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures 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 undesirable discharge was carefully considered; however, there is insufficient evidence to grant him the requested relief.

2.  His record reveals a disciplinary history which includes conviction by court-martial for multiple instances of being AWOL.  Accordingly, his chain of command recommended his elimination from the Army.  His discharge was processed in accordance with applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  There is no evidence in the available record, and the applicant failed to provide any substantiating evidence to support his claim or which shows his misconduct was a result of any reason other than the choices he made.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general 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 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)                                         AR20150000085





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150000085



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1