BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160003865 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: 17 October 2017 DOCKET NUMBER: AR20160003865 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 to amend the decision of the ABCMR set forth in Docket Number AR20110010188 on 3 November 2011. _____________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: 17 October 2017 DOCKET NUMBER: AR20160003865 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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20110010188 on 3 November 2011. Specifically, he requests an upgrade of his under other than honorable conditions discharge. He further requests a personal hearing before the Board. 2. The applicant states, in effect, his commanding officer told him he was being discharged with an under honorable conditions (general) discharge. However, when he was provided the discharge papers he noticed his discharge type was shown as "undesirable." When he asked why, he was told to sign it. When he signed his paperwork, he was advised that his discharge would automatically upgrade after 6 months. He did what he was told and departed for home. He never was charged with an Article 15 or a court-martial. He is asking that his discharge is upgraded appropriately. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 13 September 1973. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110010188 on 3 November 2011. 2. The applicant provides a new statement constituting a new argument. This new argument was not previously considered by the Board and now warrants consideration. 3. The applicant enlisted in the Regular Army on 31 January 1973. 4. While in basic training at Fort Knox, KY, the applicant accepted nonjudicial punishment on 16 March 1973 under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to be at his appointed place of duty on or about on 11 March 1973. 5. The applicant reported to Fort Polk, LA, on or about 7 May 1973 for advanced individual training in military occupational specialty 11B (Light Weapons Infantry). Between July and August 1973, he received counseling for failing to get along with others, causing trouble with his fellow trainees and cadre, lacking motivation, creating disturbances, and performing below standards. 6. A DA Form 2496 (Disposition Form), dated 13 July 1973, shows the applicant underwent a mental status examination, wherein the examining official noted: * he was mentally responsible * he was able to distinguish right from wrong * he was able to adhere to the right * he had the mental capacity to understand and participate in board proceedings * he met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness) 7. The State of Louisiana Department of Corrections notified the applicant's chain of command on 14 August 1973 that the applicant had pled guilty to a charge of possession of marijuana on or about 8 June 1973. The court sentenced him to 6 months in jail; however, the sentence was suspended and he was placed on probation for 2 years. 8. The applicant was notified by his immediate commander on 20 August 1973 that discharge actions were being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, by reason of unfitness. a. The applicant acknowledged the notification on that same day. He subsequently consulted with legal counsel and was advised of the basis for the contemplated separation action. b. The applicant acknowledged that he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. c. The applicant further acknowledged he understood that as a result of the issuance of an undesirable discharge under other 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. 9. The applicant's battalion commander recommended approval of the separation action on 27 August 1973. The battalion commander noted his company commander informed him that the applicant was only in the company for 5 days before being confined by civilian authorities. The battalion commander requested waiver of further counseling and of a rehabilitative transfer. 10. The applicant's brigade commander recommend approval of the separation action on 29 August 1973. The separation authority's approval is not available for review; however, the applicant's DD Form 214 shows he was discharged for on 13 September 1973, under the provisions of Army Regulation 635-200, chapter 13, with an under other than honorable conditions characterization of service. 11. The applicant's record is void of documentation that confirms the character of service his chain of command recommended to the separation authority during his separation action. 12. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. c. Chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unfitness was warranted, an Honorable, General, or Undesirable Discharge Certificate was issued as directed by the separation authority. DISCUSSION: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. He contends he was told he would receive an upgrade six months after his separation. 2. Army Regulation 635-200, chapter 13, provides for separation of Soldiers due to unfitness. During his 7 months of service, his record of indiscipline included NJP during basic training, confinement by civilian authorities during advanced individual training, and several counseling due to his performance. Apparently, the separation authority determined his service did not rise to the level required for a general or an honorable discharge. 3. The U.S. Army does not have, nor has it ever had, a policy that allows for the automatic upgrade of discharges based on the passage of time. Each case is decided on its own merits when an applicant requests a change. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. 4. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence is sufficient to render a fair and equitable decision at this 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) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003865 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2