IN THE CASE OF: BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150014798 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: 5 January 2017 DOCKET NUMBER: AR20150014798 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: 5 January 2017 DOCKET NUMBER: AR20150014798 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 honorable conditions (general) discharge. 2. The applicant states, in effect, his discharge was unjust, he was denied new rank, and he was passed over. His record shows he was a good Soldier. 3. The applicant provides an Airborne School Certificate, dated 16 December 1959, and a 8th Infantry Division Noncommissioned Officer Academy Certificate for the period 8 July 1961 to 12 August 1961. 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 16 June 1959 for a period of 3 years. He entered active duty, completed his initial entry training, and was awarded military occupational specialty 112 (Heavy Weapons Infantryman). He was promoted to the rank/grade of specialist four/E-4 on 15 August 1960. 3. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on four occasions between 3 January 1961 and 4 October 1961 for the following offenses: * returning late from pass on or about 2 January 1961 * missing bed check on or about 2 April 1961 * missing bed check on or about 12 August 1961 * violating curfew on or about 3 October 1961 4. The applicant's DA Form 26 (Record of Court Martial Conviction) shows he was convicted by summary court-martial on five occasions for: * absenting himself from his unit from on or about 2 December 1961 through on or about 6 December 1961 * being absent without leave (AWOL) on or about 4 February 1962 and breaking restriction on or about 10 February and 14 February 1962 * using disrespectful language toward a sergeant on an unspecified date * being AWOL on or about 18 March 1962 * being AWOL on or about 30 April 1962 5. On 2 April 1962, the applicant underwent a psychiatric evaluation. A medical official determined he did not suffer from any psychiatric disease or mental health disorder. 6. On 14 May 1962, the applicant's immediate commander recommended that he be discharged from military service under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Undesirable Habits and Traits of Character), citing the fact that the applicant had been counselled at least once every two weeks by his squad leader and/or platoon leader. The commander recommended the applicant receive an undesirable discharge. 7. On 20 April 1962, the applicant acknowledged receipt of the notification letter. He acknowledged he had been counseled and advised of the contemplated separation action. He elected to be represented by counsel and to have his case heard before a board of officers. He indicated he intended to submit statements in his own behalf and to call witnesses. No statements were available for review in this case. 8. On 12 June 1962, he appeared before a board of officers tasked with considering his elimination from military service under the provisions of Army Regulation 635-208. After careful consideration of his case, the board recommended his separation under the provisions of Army Regulation 635-208 and the issuance of a General Discharge Certificate. 9. On 21 June 1962, the separation authority approved the applicant's elimination from the Army under the provisions of Army Regulation 635-208 for frequent incidents of a discreditable nature with civil and military authorities and directed that he be furnished a General Discharge Certificate. 10. On 6 July 1962, the applicant was discharged under the provisions of Army Regulation 635-208 and given a general discharge. The DD Form 214 he was issued for this period of service shows he completed 2 years, 10 months, and 19 days of total active service with 63 days of time lost. 11. 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 policy for administrative separation for unfitness. Paragraph 3 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 a general or honorable discharge. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures for the separation of enlisted personnel. 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. DISCUSSION: 1. The applicant's record reveals a disciplinary history that includes numerous instances of NJP and at least five convictions by court-martial. Accordingly, his chain of command recommended his elimination from the Army. His discharge was processed in accordance with applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 2. There is no evidence of circumstances that may have mitigated his misconduct. His discharge accurately reflects his overall record of service, which was clearly diminished by his misconduct. The regulatory authority under which he was discharged prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or honorable discharge. In his case, the separation authority determined a general discharge was appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014798 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014798 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2