BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160000958 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: 11 May 2017 DOCKET NUMBER: AR20160000958 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. BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160000958 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, in effect, an upgrade of the characterization of his service as listed on his DD Form 214 (Report of Separation from Active Duty) for the period ending 20 January 1966. 2. The applicant states, in effect, the characterization of his service is incorrect. 3. The applicant provides three DD Forms 214. 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. Having 2 years, 6 months and 20 days prior active service, the applicant reenlisted in the Regular Army on 29 June 1964. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 25 August 1964, for wrongfully appropriating a quarter ton utility truck, (M151), the property of the U.S. Government * 24 April 1965, for failing to go at the time prescribed to his appointed place of duty 4. Special Court-Martial Order Number 100 shows the applicant pled guilty and was convicted by a special court-martial at Fort Sill, OK, of failing to obey a lawful order from a superior commissioned officer. The applicant was sentenced to forfeiture of $50.00 per month for 3 months. The sentence was adjudged on 30 June 1965 and approved on 7 July 1965. However, on 19 July 1965, the findings of guilty and the sentence as promulgated in Special Court-Martial Order Number 100 were set aside. It appears from the record of trial that one of the members of the court also participated in the case as an assistant trial counsel, contrary to the provision of Article 25 (d) (2) UCMJ. 5. His record contains a DD Form 458 (Charge Sheet), dated 9 September 1965, which shows court-martial charges were preferred against him for, without authority, absenting himself from his unit for the period 8 July through 13 August 1965. 6. He once again accepted NJP under the provisions of Article 15 of the UCMJ on 20 September 1965, for failing to be prepared for inspection. 7. Evidence shows the applicant pled guilty and was convicted by a special court-martial at Fort Campbell, KY, of: * without authority, absenting himself from his unit from, on or about 1 through 4 October 1965; and * without authority, absenting himself from his unit from, on or about 4 October to 10 November 1965 8. The applicant was sentenced to reduction in grade to private/E-1; forfeiture of $83.00 per month for 6 months; and confinement at hard labor for 6 months. The sentence was adjudged on 30 November 1965, approved on 3 December 1965, and he was committed to the Post Stockade, Fort Campbell, KY. 9. On 3 January 1966, his commander contemplated eliminating him from service due to his periods of being absent without leave (AWOL) and indications the applicant would go AWOL again if not eliminated from service. 10. The applicant was examined by a psychiatrist who noted the essential points of his mental condition were an inadequate personality, chronic, severe, manifested by inadequate response to physical, intellectual, and emotional demands; by disregard of rules and regulations with repeated displays of misconduct; and by impaired judgement and insight. There were no disqualifying mental defect sufficient to warrant disposition through medical channels. He was found to be mentally responsible, both to distinguish right from wrong and to adhere to the right. He had the mental capacity to understand and participate in board proceedings and he was cleared for administrative separation. It was further noted his inadequate motivation to change rendered himself useless to the military. 11. On 8 January 1966, the applicant's immediate commander recommended he be discharged under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) due to unfitness. In his recommendation, the commander noted the applicant's record of AWOL and misconduct could not be tolerated in the Army. He further noted the applicant indicated he would go AWOL again if he was not discharged. The commander recommended the applicant be discharged for unfitness vice inaptitude and unsuitability based on the severity and repetitive nature of the misconduct and due to the fact that it was intentional. 12. Fort Campbell Form 1408 (Statement of the Respondent), dated 8 January 1966, shows the applicant acknowledged he had been counseled and advised of the basis for the pending separation action under the provisions of Army Regulation 635-208. He declined the opportunity to consult with counsel, waived a hearing of his case by a board of officers, and declined to submit a statement in his own behalf. He acknowledged if an Undesirable Discharge was issued to him, such discharge would be under conditions other than honorable; that as a result of such discharge he may be deprived of many or all rights as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life in situations where the type of service rendered in any of the branches of the Armed Forces or the type of discharge received there from may have a bearing. 13. On 13 January 1966, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-208, by reason of unfitness, and directed that he be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade. 14. On 20 January 1966, the applicant was separated under the provisions of Army Regulation 635-208, paragraph 3A, for unfitness, with an under other than honorable conditions discharge. He had completed 3 years, 7 months, and 17 days of total active service during this period with 175 days of lost time due to AWOL. 15. On 25 May 1971, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however, on 13 August 1971, the ADRB determined that he was properly discharged. 16. On 20 May 1977, the applicant applied to the ADRB for consideration under the Department of Defense (DOD) Discharge Review Program (Special). After reviewing the findings and conclusion of the ADRB, the Secretary of the Army directed that his discharge under conditions other than honorable be upgraded to an under honorable conditions (general) discharge, effective 24 June 1977. 17. On 25 April 1978, the applicant's discharge was reviewed by the ADRB in accordance with Public Law 95-126 as part of the DOD Special Discharge Review Program (SDRP). The Board voted unanimously not to affirm the applicant's upgrade under the SDRP for the following reasons: he was discharged for unfitness due to frequent incidents and the record supported it with three periods of AWOL for 76 days and two periods of confinement for 99 days. He received one Special Court-Martial, one Summary Court-Martial and three Article 15s on his last enlistment. 18. On 28 June and 7 August 1978, the applicant was informed that the ADRB could not affirm his DOD-SDRP upgraded discharge under the review standards required by Public Law 95-126. It was noted the action did not change his upgraded (now under honorable conditions general) discharge; however, because of a new law, he would not be able to use the discharge to qualify for benefits under the Department of Veterans Affairs. REFERENCES: 1. Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness. Individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined an individual's military record was characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts. 2. The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program." It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case. An individual who had received a punitive discharge was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or were excused from completing alternate service in accordance with PP 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law. 3. Public Law 95-126 provided in pertinent part for a "Relook Program." All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards. Two of the principal features of Public Law 95-126 were: (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits. Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7a states 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 contends, in effect, that his discharge with an under honorable conditions characterization of service should be upgraded to an honorable discharge. 2. The intent of the DOD in establishing the SDRP was for the Military Services to recognize prior honorable combat service as a compelling mitigating factor in the SDRP discharge review process and to liberally apply mitigating standards to other factors presented by an applicant in requesting a discharge upgrade. 3. He had prior honorable service. During his final term of service he had an extensive history of AWOL and three instances of NJP. Further, his record confirms he accrued a combined total of 175 days of lost time due to AWOL and confinement. Based on the applicant's record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. 4. Evidence shows the applicant was properly and equitably discharged in accordance with the 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 tend to jeopardize his rights. His prior honorable service was considered during the DOD SDRP process, which resulted in an upgrade of the characterization of his service from under other than honorable conditions to under honorable conditions. 5. After review by the ADRB as part of the DOD SDRP, the board voted unanimously not to affirm his upgrade under the SDRP for the following reasons: he was discharged for unfitness due to frequent incidents and the record supported it with three periods of AWOL for 76 days and two periods of confinement for 99 days. He received one Special Court-Martial, one Summary Court-Martial and three Article 15s during his last enlistment. He was advised that as a result of the decision not to affirm his discharge upgrade he would not be able to use this discharge to qualify for benefits under the Department of Veterans Affairs. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000958 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000958 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2