IN THE CASE OF: BOARD DATE: 25 April 2017 DOCKET NUMBER: AR20150018081 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: 25 April 2017 DOCKET NUMBER: AR20150018081 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: 25 April 2017 DOCKET NUMBER: AR20150018081 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, correction of his records to show he was discharged under chapter 5 (Convenience of the Government) instead of chapter 13 (Unfitness) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). 2. The applicant states he had an unjust hearing at Fort Riley. 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 5 February 1974 and he held military occupational specialty 31M (Radio Relay and Carrier Attendant). 3. On 17 July 1974, while still in training at Fort Gordon, GA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave from 15 to 17 July 1974. 4. He served in Korea from 10 October 1974 to on or about 2 April 1975. He was assigned to Company B, 307th Signal Battalion. 5. On 30 December 1974, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty. 6. On 3 April 1975, he was convicted by a special court-martial of one specification of committing an assault on another Soldier by means or force likely to produce grievous bodily harm and one specification of unlawfully striking another Soldier on the chest. The court sentenced him to confinement at hard labor for 5 months, a forfeiture of $100 pay per month for 5 months, and a reduction to the lowest enlisted grade of E-1. The convening authority approved the sentence on 18 April 1975. 7. The applicant was reassigned to the U.S. Army Retraining Brigade, Fort Riley, KS on 15 April 1975. 8. The complete facts and circumstances surround his discharge are not available for review with this case. However, his service records contain: a. DA Form 2496 (Disposition Form), dated 11 June 1975, showing the applicant's commanding officer recommended his discharge from the service for frequent discreditable acts. Enclosure 1, which is attached to the DA Form 2496, is titled "Resume" and it details an extensive history of misconduct and various infractions, including: * being absent without leave * having his valuables unsecure * being late getting out of bed * sloppy bunk or bed unmade * improper display of his bed * moving around in formation * disruptive behavior and/or sleeping in class * failing to report to fireguard briefing * failure to repair b. Special Orders Number 141, issued by Headquarters, U.S. Army Retraining Brigade, Fort Riley, KS, on 22 July 1975, ordering his undesirable discharge effective 23 July 1975. c. A memorandum, signed by the applicant on 23 July 1975, indicating he declined a separate statement explaining the narrative reason for separation, narrative description of the authority for separation, and the reenlistment code. d. The applicant’s DD Form 214 (Report of Separation from Active Duty), showing he was discharged with an under other than honorable conditions characterization of service on 23 July 1975. He was discharged under the provisions of Army Regulation 635-200, chapter 13. He completed 1 year, 3 months, and 9 days of creditable active military service and had 70 days of lost time. His DD 214 also shows in: * item 9c (Authority and Reason), Separation Program Designator (SPD) JLB (Discreditable Incidents – Civilian or Military) * item 9f (Type of Certificate Issued), DD Form 258A (Undesirable) * item 10 (Reenlistment Code (RE)), RE-3 9. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 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. 2. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of JLB as the appropriate code to assign enlisted Soldiers involuntarily discharged under the provisions of AR 635-200, paragraph 13-5a(1), for unfitness based on frequent incidents of a discreditable nature with civil or military authorities. DISCUSSION: 1. The applicant's record is void of the complete facts and circumstances that led to his discharge. However, his record contains a DD Form 214 that shows he was discharged on 23 July 1975 under the provisions of AR 635-200 by reason of unfitness. 2. It appears following his reassignment to the Retraining Brigade at Fort Riley, he continued to display a pattern of misconduct. It also appears he was provided counseling and/or multiple opportunities for rehabilitation by members of his chain of command, but he failed to respond constructively. Accordingly, his chain of command presumably initiated separation action against him by reason of unfitness. 3. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. In the absence of evidence showing otherwise, it must also be presumed that the characterization of his service for his period of service ending on 23 July 1975 accurately reflects the decision the separation authority made after reviewing his record. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018081 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018081 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2