AR20150010098

IN THE CASE OF:

BOARD DATE: 31 May 2016

DOCKET NUMBER: AR20150010098

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

____X___ ____X___ ____X___ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 31 May 2016

DOCKET NUMBER: AR20150010098

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: 31 May 2016

DOCKET NUMBER: AR20150010098

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 his general discharge, under honorable conditions, be upgraded to an honorable discharge.

2. The applicant states he served in Vietnam, Japan, Korea, and the United States. He received honorable discharges in 1969 and 1972 and he attained the rank of staff sergeant (SSG)/pay grade E-6. A family member died and he was not allowed to leave to attend the funeral to be with his family. He left anyway resulting in time lost and his eventual general discharge. He served honorably more than 7 years and 10 months of his 8 years of service and he was awarded the Bronze Star Medal for meritorious service. The state of Texas will not issue him a Bronze Star license plate with a general characterization of service. He is a disabled Vietnam veteran and draws Department of Veterans Affairs (VA) compensation.

3. The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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. On 5 December 1967, he enlisted in the Regular Army. He served in the Republic of Vietnam and Japan during this enlistment. On 23 December 1969 he was honorably discharged for immediate reenlistment. Headquarters, 101st Airborne Division General Orders 91, dated 1969, awarded him the Bronze Star Medal.

3. On 24 December 1969, he reenlisted for 3 years. He served in Japan and Korea during this enlistment. He was awarded the Army Good Conduct Medal for his period of service ending 23 July 1972. He was honorably discharged on 12 October 1972.

4. On 13 October 1972, while in Korea, he immediately reenlisted for 5 years. His previous service was characterized as honorable. He was promoted to SSG on 1 July 1973.

5. On 20 November 1973, he was assigned to Headquarters and Headquarters Battery, 2nd Battalion, 37th Field Artillery (FA) at Fort Sill, OK. On 5 February 1975, he was assigned to the Service Battery, 37th FA. On 31 July 1975, he was assigned to Service Battery, 2nd Battalion, 18th FA at Fort Sill.

6. On 23 June 1975, he received nonjudicial punishment (NJP) for being absent from his unit without authority.

7. On or about 21 July 1975, he received NJP for being absent without leave (AWOL) from 30 June to 12 July 1975. His punishment included reduction to sergeant/pay grade E-5.

8. On 23 October 1975, he received NJP for failing to go at the time prescribed to his appointed place of duty, being absent without authority from his unit on
2 September 1975, and being AWOL from 24 September to 12 October 1975. His punishment included reduction to specialist four/pay grade E-4.

9. On 26 January 1976, he received NJP for being AWOL from 30 December 1975 to 20 January 1976. His punishment included reduction to private first class/pay grade E-3.

10. On 29 January 1976, the applicant’s acting first sergeant counseled him on his conduct and consistent absence without authority.

11. On 10 March 1976, he received NJP for being AWOL from 1 to 5 March 1976. His punishment included reduction to private (PV1)/pay grade E-1.

12. On 11 March 1976, he was given a mental status evaluation. The examiner found he met the physical retention standards prescribed in Army Regulation (AR) 40-501 (Standards of Medical Fitness). The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

13. On 26 March 1976, the applicant’s commander notified him he was initiating action to discharge him under the provisions of paragraph 13-5a(4) of
AR 635-200 (Personnel Separations Enlisted Personnel) for unfitness. The commander advised the applicant of his right to:

* be represented by counsel
* submit statements in his own behalf
* review documents to be presented to the separation authority
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

14. On 28 March 1976, the applicant’s commander submitted a statement of formal counseling in support of administrative action. The commander stated:

a. He had counseled the applicant on several occasions since the first week of December 1975. He discussed with the applicant his financial situation, current status within the battery, and his future in the military with regards to his previous reductions and periods of AWOL.

b. The applicant received four field grade Article 15’s during the course of a few months. He had been reduced from E-6 to E-1 and received a rehabilitative transfer from the 2nd Battalion, 37th FA to the 2nd Battalion,
18th FA.

15. On 29 March 1976, the applicant indicated he was submitting statements in his behalf. He also acknowledged he had been advised by consulting counsel of:

* the basis for the contemplated action to accomplish his separation for unfitness and its effects
* the rights available to him
* the effect of any action taken by him in waiving his rights

16. He further acknowledged he might expect to encounter substantial prejudice in civilian life if a general discharge were issued to him. The applicant waived:

* consideration of his case by a board of officers
* a personal appearance before a board of officers
* representation by appointed military counsel or civilian counsel at his own expense
* a psychiatric examination in connection with this action

17. In the applicant’s statement, dated 29 March 1976, he provided a history of his assignments, accomplishments, and his challenges during his Army career. He and his wife were separated and her lawyer and father were putting pressure on him. His bills were behind due to lawyer costs and paying off his wifes bills. He departed to Texas for the weekend and his truck broke down. He called his battalion and reported he was unable to return on schedule. When he called again the next day he was told he was AWOL and the commander had recommended a court-martial. He felt his career was lost and he couldn’t bear the thought of losing his rank. He remained absent. His ex-wife continued to try to put him in jail and the bills kept building up. Creditors called every day, threatening to sue him and put him in jail. His reduction in rank caused financial difficulty. He continued with the problems until he was reduced to private.

18. He was awarded the Bronze Star Medal in Vietnam for meritorious service and he was awarded the Army Good Conduct Medal. He served a total of
56 months overseas and has 90 months of honorable service compared to
8 months of misconduct.

19. On 29 March 1976, the applicant’s commander recommended he be eliminated from the service before the expiration of his term of service for unfitness because of an established pattern for shirking under the provisions of paragraph 13-5a(4) of AR 635-200. The applicant had 5 separate periods of AWOL since 1968, accounting for 62 days of time lost. The applicant stated during many counseling sessions that financial problems had caused him to depart the unit in an AWOL status. Yet, while the unit was attempting to assist in solving his problems he continued to depart AWOL.

20. The applicant’s intermediate commander recommended the applicants elimination from the service prior to the expiration of his term of service.

21. On 16 April 1976, the appropriate authority waived the rehabilitative transfer requirement, approved his discharge under the provisions of paragraph 13 of
AR 635-200, and directed the issuance of a general discharge.

22. On 21 April 1976, the applicant was discharged under the provisions of chapter 13 of AR 635-200 for unfitness due to an established pattern of shirking. He completed 3 years, 4 months, and 8 days of net active service during this enlistment. He had 62 days of time lost.

23. There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB’s 15-year statute of limitations.

REFERENCES:

AR 635-200 sets forth the basic authority for the separation of enlisted personnel.

a. Paragraph 13-5a, then in effect, provided for discharge of individuals for unfitness. Among the reasons for unfitness were frequent incidents of a discreditable nature with civil or military authorities and an established pattern for shirking. An individual separated for unfitness would be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate could have been issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in their case.

b. 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 members 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.

DISCUSSION:

1. 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. The records contain no indication of procedural or other errors that would have jeopardized his rights.
2. The applicant’s two previous honorable discharges and his award of the Bronze Star Medal and the Army Good Conduct Medal are noted. The Bronze Star Medal was awarded to him during his first enlistment and the Army Good Conduct Medal was awarded to him on his second enlistment. The separation authority clearly considered these discharges and awards in the characterization of his service in that a general discharge was directed instead of the undesirable discharge that was normally considered appropriate for a discharge for unfitness.

3. He was promoted to SSG on 1 July 1973. In promoting the applicant to SSG, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant. As a SSG, the applicant was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him. The applicant violated this special trust and confidence.

4. Since his reenlistment on 13 October 1972, the applicant had received NJP on five occasions resulting in his reduction in rank from SSG to PV1. There is no record of service during this enlistment that was so meritorious as to outweigh his misconduct.

5. The applicant’s actions and reductions in rank since his reenlistment on
13 October 1972 show the quality of his service did not meet the standards of acceptable conduct and performance of duty for Army personnel during this period of service.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150010098

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150010098

6

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2