IN THE CASE OF: BOARD DATE: 26 October 2017 DOCKET NUMBER: AR20160004179 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: 26 October 2017 DOCKET NUMBER: AR20160004179 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: 26 October 2017 DOCKET NUMBER: AR20160004179 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 general discharge to honorable. 2. The applicant states he was treated unfairly at the time of his discharge. He was not sleeping on duty; the camp was overrun. He had to accept the discharge just to get out of the current duty. 3. The applicant provides: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * 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 was inducted into the Army of the United States on 22 June 1967. 3. On 6 May 1968, nonjudicial punishment (NJP) was imposed against him for failing to go at the time prescribed to his appointed place of duty. 4. On 22 May 1968, he was advanced to the temporary rank/pay grade of specialist four/E-4. 5. He departed for Vietnam on or about 8 June 1968. He was assigned to the 571st Ordnance Company in Vietnam effective 27 June 1968. 6. On 17 August 1968, he was convicted by a summary court-martial of sleeping on post while serving as a sentinel on perimeter guard. He was sentenced to forfeiture of $79.00 in pay and reduction to the rank/pay grade of private/E-2. On 17 August 1968, the convening authority approved the sentence. 7. On 4 September 1968, NJP was imposed against him for disobeying a lawful order. 8. On 31 October 1968, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty (three specifications) and failing to obey two lawful orders. 9. On 27 November 1968, he was convicted by a summary court-martial of failing to obey a lawful order. He was sentenced to forfeiture of $50.00 pay per month for 1 month and hard labor without confinement for 30 days. On 29 November 1968, the convening authority approved the sentence. 10. On 6 December 1968, he underwent a mental status evaluation and the psychiatrist diagnosed him with a passive-aggressive character. He was found mentally responsible and separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) was recommended. 11. On 16 December 1968, discharge proceedings were initiated to separate him for unsuitability under the provisions of Army Regulation 635-212. The unit commander cited the applicant required an inordinate amount of supervision and disciplinary action. He has been directly involved in numerous incidents of a discreditable nature with the military authorities. He has shown no inclination toward responding to his supervisors and a general apathy toward any improvement in his work habits. 12. He consulted with counsel, waived his rights, and acknowledged that he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him. He also elected not to submit a statement in his own behalf. 13. On 20 December 1968, the separation authority approved the recommendation for separation and directed the issuance of a General Discharge Certificate. 14. He departed Vietnam on 25 December 1968. 15. He was discharged under honorable conditions (general) for unsuitability on 30 December 1968 under the provisions of Army Regulation 635-212. The separation program number 46A shown on his DD Form 214 represents unsuitability due to apathy, defective attitudes, and inability to expend effort constructively. He completed 1 year, 6 months, and 11 days of total active service. 16. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and unsuitability. Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he met retention medical standards. Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis. An honorable discharge or a general discharge under honorable conditions was considered appropriate. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service had generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. DISCUSSION: 1. The applicant's contention that he was not sleeping on post in Vietnam relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the summary court-martial/appellate process. 2. His record of service included three NJPs and two summary courts-martial convictions. 3. His discharge proceedings for unsuitability were conducted in accordance with law and regulations in effect at the time. The characterization of his discharge was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations in effect 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) AR20160004179 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004179 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2