IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011539 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: 16 June 2016 DOCKET NUMBER: AR20150011539 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: 16 June 2016 DOCKET NUMBER: AR20150011539 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 under other than honorable conditions discharge. 2. The applicant states he believes he was unjustly discharged because of racism from his first sergeant (1SG) and the executive officer (XO). He was told he would not last a year. He tried to report it, but his complaints fell on deaf ears. He felt there was no help for him and the only course was for him to run away (i.e., go absent without leave (AWOL)). However, each time he came back it got worse. No one likes to be racially degraded. 3. The applicant provides 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 30 August 1960 in the rank of private (PV1)/E-1. His DD Form 4 (Enlistment Record - Armed Forces of the United States), dated 30 August 1960, shows he completed 8th grade and 2 years of high school but did not graduate from high school (emphasis added). On 30 December 1960, he was promoted to the rank of private (PV2)/E-2. 3. On 14 February 1961, he was assigned to Headquarters and Headquarters Company (HHC), 1st Battle Group (BG), 15th Infantry Regiment, Germany. On 12 April 1961, he was assigned to Company B, 1st BG, 15th Infantry Regiment. 4. On 23 May 1961, he was counseled by Sergeant (SGT PMF), his immediate supervisor, for missing formation. He was told of the importance of attending all formations and that a recurrence of that type of conduct could lead to punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). On 22 June 1961, he failed to report for formation at the prescribed time. 5. On 24 June 1961, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for failing to report for bed check at the prescribed time. Part of the punishment imposed was restriction to the company area. This Article 15 is not available for review with this case. 6. On 5 July 1961, he was convicted by a summary court-martial for one specification of breaking restriction on 27 June 1961. He was sentenced to 45 days extra duty, forfeiture of $60 pay for 1 month, and reduction to PV1/E-1. 7. On 19 August 1961, he was promoted to PV2/E-2. 8. On 12 September 1961, he was reported as AWOL from his assigned unit. On 13 September 1961, he turned himself in and was confined at the post stockade pending court-martial charges. On 20 September 1961, he was returned to his assigned unit. 9. On 25 September 1961, he was convicted by a summary court-martial of one specification of being AWOL from 12 to 13 September 1961 and two specifications of breaking restriction on 19 and 31 August 1961. He was sentenced to confinement for 30 days, forfeiture of $55 pay for 1 month, and reduction to PV1/E-1. He was confined at the Wurzburg Stockade, Wurzburg, Germany. 10. His immediate commander subsequently recommended discharge action be initiated against him under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness and Unsuitability) for misconduct. 11. On 3 October 1961, he underwent a psychiatric examination. The Army Europe (AE) Form 3087 (Certificate of Psychiatric Examination), dated 12 October 1961, shows the examining physician diagnosed him with a passive-aggressive reaction that existed prior to entry in the service (EPTS). He stated, in part: a. The applicant was a single 19 year old male and was examined at the Wurzburg Stockade. He had completed 13 months of service and was under investigation on charges of AWOL, disobeying a lawful order, and having an unauthorized pass. The applicant was likely to perform effectively only on his own terms and was a candidate for board action. b. He was alert and responsive but his motivation was defective and not predictive of a favorable response to further rehabilitative efforts. His attitude toward service was progressively deteriorating. There were no defects of orientation, intelligence, or judgment. There was no evidence of delusions, hallucinations, or other symptoms of psychosis. Further rehabilitative efforts would probably not be effective. 12. In a sworn statement, dated 20 October 1961, SGT PMF stated, in part, the applicant had served in his squad for about 3 months. a. During that time, he had repeatedly missed prescribed formations. On 23 May 1961, he was told there was a formation at 1300 (hours) and he was absent from the formation. He was verbally reprimanded and told a recurrence could result in Article 15, UCMJ, action against him. On 22 June 1961, he missed the 1300 formation and he was pulled from the pass list for 7 days. b. He had been unable to adjust to military life and had repeatedly abused his military equipment. On 8 August 1961, he willfully broke his helmet liner and on 19 August 1961 he had a dirty weapon and unpolished brass for an inspection. At that time, he was verbally reprimanded for the deficiencies in his weapon and uniform. He was told conduct of this nature brought discredit on himself and the Army and if he did not improve he could be discharged under the provisions of Army Regulation 635-208. He was advised of the adverse consequences of this type of discharge but to no avail. It was his opinion that the applicant did not care about the Army, was unreliable, and would be a hazard to the unit in time of a national emergency. 13. On 7 November 1961, the applicant underwent a second psychiatric examination. The AE Form 3087 (Psychiatric Examination), dated 7 November 1961, shows the examining physician diagnosed him with a passive-aggressive reaction EPTS. He stated, in part: a. The applicant's condition was characterized by ambivalence toward authority and expressing resultant hostility by passively aggressive action or inaction. He was either overtly or marginally obstructionistic, inefficient, procrastinating, surly, sloppy, and stubborn. He flouted social and military rules and conventions. b. He was referred by his company commander as the original report had expired. He had one Article 15 and two summary courts-martial. He received the Article 15 for missing bed check and the first summary court-martial for breaking restriction. He was being investigated on larceny charges and could not contact his only favorable witness by phone so he left the company area. The larceny charges were later dropped as the missing items were found in another Soldier's locker. c. On 16 August 1961, he put in for a pass and the charge of quarters (CQ) gave him a pass. The military police (MPs) picked him up for having an illegal pass and the CQ denied giving him the pass. The charge was finally dropped and he was charged with another count of breaking restriction and going AWOL (1 day). He had been disgruntled about signing in every hour and went AWOL to Amsterdam, Holland, by train, where he turned himself in to military authorities. d. The applicant was alert and cooperative in the examination. Affect and speech patterns were normal; there were no gross defects of orientation, intelligence, or judgment. There was no evidence of delusions, hallucinations, or other symptoms of psychosis. e. While the applicant's behavior was borderline and immature, he nevertheless showed signs of possible response to rehabilitative efforts. The fact that he could adjust well enough to complete 1 year at the college level portends the possibility of adjustment to the Army if given the chance. f. The recommendation was to adjudicate the charges that were pending against him and consider a rehabilitative transfer. However, if the command felt strongly that he should be separated under the provisions of Army Regulation 635-208, there was no psychiatric impediment to that type of discharge. 14. The complete facts and circumstances surrounding the applicant's discharge processing are not known; however, his record contains a DA Form 1574 (Checklist for Proceedings of Investigating Officers/Board of Officers), dated 10 November 1961, wherein it shows a board of officers convened on that date to determine if he should be discharged under the provisions of Army Regulation 635-208 for unfitness. The board subsequently recommended him for separation action. 15. On 11 January 1962, his senior commander concurred with the findings of the board and recommended approval of the separation action with the issuance of an Undesirable Discharge Certificate. 16. The separation authority subsequently approved the applicant's separation action and directed the issuance of an Undesirable Discharge Certificate. On 15 February 1962, he was discharged accordingly. 17. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-208, for unfitness - frequent incidents of a discreditable nature (separation program number 28B) with an under other than honorable conditions characterization of service. He completed 1 year, 3 months and 23 days of net active service with 54 days of lost time due to being AWOL and/or in confinement. 18. There is no indication he 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 635-208, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a stated, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities or an established pattern of shirking. This regulation prescribed that an individual discharged for unfitness would normally be furnished an undesirable discharge. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations): 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. DISCUSSION: 1. The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the Article 15 and two courts-martial convictions he received. Accordingly, his immediate commander initiated separation action against him. 2. Although the complete facts and circumstances surrounding his discharge processing are not known, in the absence of evidence to the contrary it is presumed his discharge action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case. 3. The applicant's contention that his 1SG and XO were prejudiced against him because of his race is noted; however, the evidence of record does not show and the applicant has not submitted any evidence that shows the actions taken against him were racially motivated. Rather, the record shows he was disciplined for repeatedly failing to report at the prescribed time, breaking restriction, failing to follow instructions, and going AWOL. 4. Based on the applicant's overall record, his service did not meet the standards of acceptable conduct of duty for Army personnel. He does not meet the criteria for an honorable or general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011539 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011539 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2