IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011797 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011797 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. IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011797 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, in effect, an upgrade of his under other than honorable conditions discharge to an honorable discharge. 2. The applicant states he is making the request because he does not have an honorable discharge. He requested to get out of the Army. 3. The applicant provides no additional evidence. 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 28 September 1973. Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) from 3 February 1974 to 8 February 1974 (6 days). His record is void of an Article 15 or other documentation for this AWOL period. 3. On 15 February 1974, he was assigned to Troop D, 1st Squadron, 4th Cavalry Regiment, Fort Riley, KS. 4. He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows: * 1 May 1974, for being absent from his place of duty (guard duty) without the proper authority * 2 August 1974, for failing to obey a lawful order issued by the first sergeant (1SG) * 4 December 1974, for wrongfully reporting for guard duty without the proper uniform * 15 January 1975, for failing to obey a lawful order issued by a noncommissioned officer (NCO) 5. On 3 February 1975, he was transferred to Troop A, 1st Squadron, 4th Cavalry, Fort Riley, KS. 6. On 16 December 1975, he received NJP under the provisions of Article 15, UCMJ, for: * being disrespectful in language toward an NCO * failing to obey a lawful order issued by an NCO 7. On 5 February 1976, he was convicted by a special court-martial of two specifications each of failing to obey a lawful order issued by an NCO. The sentence imposed included confinement for 28 days at the Fort Riley Installation Confinement Center. 8. On 13 February 1976, the applicant underwent a mental evaluation administered by an Army medical doctor. The DA Form 3822 (Report of Mental Status Evaluation), shows the examining physician found his behavior was normal, he was fully alert and oriented, his mood was level, his thinking process was clear, and his thought content was normal. He found the applicant was mentally responsible, able to distinguish right from wrong, had the mental capacity to understand and participate in board proceedings, and he did meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 9. The complete facts and circumstances surrounding his discharge processing are not filed in his military record. However, his record contains a DD Form 214 (Report of Separation from Active Duty) confirming he was discharged on 5 March 1976, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(1), by reason of unfitness – frequent incidents of a discreditable nature with civil or military authorities (separation program designator (SPD) JLB), with an under other than honorable characterization of service. He was issued an Undesirable Discharge Certificate. 10. On 17 May 1977, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined his discharge was both proper and equitable. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13, then in effect applied to separation for unfitness and unsuitability. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, drug abuse, an established pattern of shirking, failure to pay just debts, and failure to support dependents. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. b. 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. c. 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: 1. The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on six different occasions, in part, for failing to go to his appointed place of duty, being disrespectful to an NCO, and repeatedly failing to obey lawful orders. He was subsequently convicted by a special court-martial of failing to obey lawful orders. Accordingly, his commander initiated separation action against him for unfitness – frequent incidents of a discreditable nature with military authorities. 2. Although his record is void of the specific facts and circumstances surrounding his discharge processing, in the absence of evidence to the contrary it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for his separation were appropriate considering all the available facts of the case. 3. Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel. This misconduct renders his service unsatisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011797 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011797 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2