BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160001336 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 BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160001336 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. BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160001336 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 (UD) be upgraded to an under honorable conditions (general) discharge (GD). 2. The applicant states he should not have been allowed in the military service because of his severe learning disability. His recruiter just wanted a number and pushed him through under unethical conditions. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) was lost. He has just been able to get it. He did not know he was released under the conditions shown on the DD Form 214. 3. The applicant provides a copy of his DD Form 214. 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. Records show the applicant graduated from high school in 1971. 3. On 21 December 1971, the applicant enlisted in the Regular Army. He completed his initial entry training to include military occupational specialty (MOS) training as a supply man. 4. The applicant accepted the following non-judicial punishments (NJPs): * 20 January 1972 – absent without authority on 18-19 January 1972 * 28 March 1972 – failed to go to his appointed place of duty at the prescribed time * 4 April 1972 – used reproachful words toward a sergeant and was absent without authority from 2 April to 3 April 1972 * 24 April 1972 – reported for duty in the wrong work uniform and willfully disobeyed a lawful order to get into the proper uniform * 25 April 1972 – willfully disobeyed a lawful order to exchange his helmet * 7 June 1972 – attempted to steal a radio/cassette player from the Post Exchange * 14 August 1972 – willfully disobeyed a lawful to get a haircut, went from his appointed place of duty without authority, and appeared in the company area wearing his uniform improperly * 21 August 1972 – absent without authorization from 17 to 20 August 1972 and willfully disobeyed a lawful order to have his name tag and shoulder insignia put on his uniform * 23 August 1972 – appeared in the company area wearing his uniform improperly and broke restriction * 28 August 1972 – dereliction of duties as the barracks orderly/guard and wrongfully appeared in the company area without wearing his fatigue shirt or boots * 5 September 1972 – disobeyed a lawful order to report to the First Sergeant with a shave and shined boots 5. On 12 September 1972, the unit commander recommended the applicant be separated for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). He cited the applicant's frequent incidents of a discreditable nature with civil and military authorities as the reasons for taking the action. He also referenced the applicant’s numerous NJPs. The commander stated that the applicant’s behavior was intentional and was not due to any incapacity within the meaning of unsuitability. 6. On 13 September 1972, after being notified of his commander’s intent to initiate action to separate him under the provisions of Army Regulation 635-212 by reason of unfitness, the applicant consulted with legal counsel. After being advised of the basis for the contemplated separation, its effects, and the rights available to him, the applicant waived his right to have his case considered by a by a board of officers, his right to a personal appearance before a board of officers, and his right to counsel. He further elected not to make a statement in his own behalf. 7. On 18 September 1972, the Headquarters Commandant deemed the recommendation appropriate based on the applicant’s record of NJPs for unauthorized absences, wrongful use of reproachful words, stealing, and failures to repair. 8. On 21 September 1972, the separation authority approved the applicant’s discharge and directed that he receive a UD. On 3 October 1972, the applicant was discharged accordingly. The DD Form 214 issued to the applicant on the date of his separation confirms he completed a total of 10 months and 13 days of creditable active military service. 9. In September 1977, the Army Discharge Review Board (ADRB) considered the applicant’s military service under the Department of Defense Discharge Review Program (Special). The ADRB determined that he was properly discharged and denied him an upgrade of his service characterization. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness. The separation authority could authorize an honorable or general discharge if warranted by the Soldier's military record; however, an UD was normally considered appropriate for members separating under these provisions. 2. Army Regulation 635-200 (Personnel Separations): a. Paragraph 3-7a provides that an honorable discharge (HD) 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 GD 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 HD. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. DISCUSSION: 1. The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation. The record confirms that after being properly notified of the separation action by his unit commander and being advised of the basis for the action and of his rights by legal counsel, the applicant elected not to submit a rebuttal statements in his own behalf. 2. The evidence shows that the applicant had graduated from high school and successfully completed his initial training and was awarded an MOS. This indicates that he had the ability to understand and follow instructions and lawful orders. The evidence shows the applicant's commander believed the applicant’s misconduct was intentional and was not due to any incapacity within the meaning of unsuitability. 3. The applicant’s record documents an extensive disciplinary history that includes his acceptance of numerous NJPs. As a result, his record clearly did not support the issuance of a GD by the separation authority at the time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001336 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001336 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2