BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160001977 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: 6 June 2017 DOCKET NUMBER: AR20160001977 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: 6 June 2017 DOCKET NUMBER: AR20160001977 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 discharge under other than honorable conditions. 2. The applicant states that every time he turned around, his first lieutenant was constantly issuing him nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). This was wrong. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 12 April 1972. 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations. 2. The applicant enlisted in the Regular Army on 5 November 1969. He held military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic). He was promoted to pay grade E-3 on 18 May 1970. He was honorably discharged on 7 July 1970 for the purpose of immediate reenlistment. 3. He reenlisted on 8 July 1970 and continued to hold MOS 63B. 4. He accepted NJP under the provisions of Article 15, UCMJ, as indicated below. His punishments consisted of a reduction to E-1, forfeiture of pay, and performance of extra duty and restriction: * 29 January 1971 – willfully disobeying a lawful order from his superior noncommissioned officer and failing to go to his appointed place of duty on 28 January 1971 * 8 June 1971, 2 July 1971, 10 August 1971, and 31 January 1972 – failing to go to his appointed place of duty 5. An undated Report of Mental Status Evaluation shows his behavior was found to be normal, he was fully alert and fully oriented, and his mood was level. His thinking process was clear and his thought content was normal. He was found to be mentally responsible and able to distinguish right from wrong and to understand and participate in separation board proceedings. He was found to have met the medical retention standards. This evaluation was signed by a medical doctor. 6. On or about 22 February 1972, the applicant's company commander notified him of his intent to separate him for unfitness under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). He stated the reason for the action was the applicant's shirking of duties on several occasions and being absent from his place of duty. 7. On 22 February 1972 after consulting with counsel, the applicant acknowledged receipt of the proposed separation action. He acknowledged he could receive an undesirable discharge and was advised of the result of issuance of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. 8. On 1 March 1972, the applicant's company commander recommended approval of his discharge due to unfitness based on an established pattern of shirking with issuance of an undesirable discharge. 9. On 6 March 1972, a bar to reenlistment was imposed against the applicant. 10. On 5 April 1972, the applicant's senior commander recommended approval of his undesirable discharge. 11. The separation authority approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate. 12. He was discharged accordingly in pay grade E-1 on 12 April 1972. His DD Form 214 shows he completed 1 year, 9 months, and 5 days of active service. His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate. 13. On 12 February 1985, the Army Discharge Review Board denied his petition for an upgrade of his discharge. REFERENCES: 1. AR 635-212, in effect at the time, set forth the authority for separation of enlisted personnel for unfitness and unsuitability. Paragraph 6a stated an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 2. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant's record of service during his second enlistment included acceptance of four NJPs and ultimately a reduction to E-1. Action was initiated to separate him for unfitness due to an established pattern of shirking with issuance of an undesirable discharge. After consulting with counsel, the applicant acknowledged the proposed separation and potential for an undesirable discharge based on his multiple acts of misconduct. The separation authority approved his discharge and he was discharged accordingly with issuance of an Undesirable Discharge Certificate. 2. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. The characterization of his discharge was commensurate with the reason for discharge in accordance with the governing regulation in effect at the time. The separation authority determined at the time that the applicant’s service did not rise to the level required for issuance of an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001977 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001977 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2