BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017347 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: 13 April 2017 DOCKET NUMBER: AR20150017347 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: 13 April 2017 DOCKET NUMBER: AR20150017347 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 an upgrade of his characterization of service from under honorable conditions (general) to honorable. 2. The applicant states he worked 38 years before retiring and he has never been arrested. 3. The applicant provides a page presumably from his resume and 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 31 October 1970. He completed training and he was awarded military occupational specialty (MOS) 67N (UH-1 Helicopter Repairman). Evidence shows he served in the Republic of Vietnam from 10 July 1971 through 27 March 1972 and his conduct and efficiency was rated as excellent/excellent and good/excellent throughout this period. 3. The applicant rotated to Fort Hood, TX, on 18 May 1972. His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions: a. 7 September 1972, for, without authority, absenting himself from his unit from 5 to 31 August 1972; b. 12 September 1972, for failing to go at the time prescribed to his appointed place of duty on 7 and 10 September 1972; c. 2 February 1973, for, without authority, absenting himself from his unit from 5 to 10 January 1973; and d. 16 March 1973, for failing to go at the time prescribed to his appointed place of duty on 16, 19, and 28 February 1973. 4. Evidence shows he received a bar to reenlistment on 2 October 1972 due to receipt of two Article 15s and unsatisfactory conduct and efficiency. In addition, his immediate commander stated the applicant's attitude and conduct were much lower than the minimum required from an enlisted Soldier. It was further noted the applicant required constant supervision and counseling from his superiors. The applicant elected not to submit a statement in his own behalf. 5. His record contains a Disposition Form, which shows a complete review of his physical and mental examinations failed to reveal any defects, which would have contributed to his misconduct. According to Army Regulation 40-501 (Standards of Medical Fitness), the applicant was found to be physically and mentally fit for duty without profile limitations. He was deemed responsible for his acts and able to understand and participate in board proceedings. 6. On 21 March 1973, the applicant signed a document acknowledging that consulting counsel advised him that his commander was contemplating action to accomplish his separation for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, based on unsuitability. Consulting counsel also advised him of the basis for the contemplated separation, its effects, of the rights available to him, and of the effects of any action taken to waive his rights. a. The applicant waived consideration of his case before a board of officers, waived a personal appearance hearing before a board of officers, and indicated that he would not submit statements in his own behalf. The applicant also waived his right to representation by counsel. b. The applicant acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. He further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. 7. On 21 March 1973, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, chapter 13 by reason of unsuitability. The commander recommended a general discharge due to the applicant's inability to adhere to military standards as evidenced by the NJP he received. The commander felt the applicant should be considered for elimination for unsuitability because he felt the applicant had shown that he was unsuitable as opposed to unfit. The applicant became a progressive problem to the unit by his lack of initiative and unwillingness to perform his assigned duties, which rendered his duty performance negligible. 8. On 4 April 1973, the separation authority approved a rehabilitative transfer waiver and the request to eliminate the applicant from military service under the provisions of Army Regulation 635-200, chapter 13. 9. On 5 April 1972, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability and directed the issuance of a General Discharge Certificate. 10. On 1 May 1973, the applicant was discharged accordingly. His DD Form 214 confirms he was separated under the provisions of Army Regulation 635-200, chapter 13, unsuitability with an under honorable conditions characterization of service and that he completed 2 years, 5 months and 10 days of total active military service with 21 days of lost time. 11. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge. On 21 March 1979, The Adjutant General notified the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined that his discharge was proper. Accordingly, The ADRB denied his request for a change in the type and nature of his discharge. However, the Board determined that the reason and authority for his discharge should be changed. The ADRB subsequently changed the reason and authority for his discharge to paragraph 14-33b(2), misconduct-an established pattern for shirking and provided a DD Form 215 (Correction to DD Form 214) to document the correction. REFERENCES: Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel: a. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts. 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. Chapter 14 (Separation for Misconduct), Section V (Other Acts or Patterns of Misconduct) Paragraph 14-33b(2), in effect at the time, states members are subject to separation when they have an established pattern of shirking. DISCUSSION: 1. The applicant requests his under honorable conditions discharge be upgraded to honorable. The evidence he submitted in support of his request is presumably a portion of a self-authored civilian resume, which shows he has achieved success since his discharge. He does not address, however, the misconduct, which led to his separation. While his post-service accomplishments are noteworthy, they do not serve to offset the characterization of service he received. 2. His record revealed that he possessed the necessary skills to successfully complete training in order to be awarded MOS 67N and to successfully complete a tour of duty in the Republic of Vietnam and later stateside in which his conduct and efficiency was admirable. However, his Military Personnel Records Jacket also revealed a disciplinary history, which included numerous infractions. 3. Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case as corrected by the ADRB. His records contain no indication of procedural or other errors that would tend to jeopardize his rights. 4. It appears the separation authority considered his service in Vietnam in the characterization of his service in that a general discharge was directed instead of the undesirable discharge, which was normally considered appropriate for a discharge for unfitness. 5. Based upon the foregoing, the applicant's overall service did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct rendered his service unsatisfactory. 6. Based on his misconduct, his service does not meet the criteria for an honorable character of service as stipulated in Army Regulation 635-200, paragraph 3-7. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017347 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017347 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2